HomeMy WebLinkAboutLEG 11-22Report to Council
Report Number: LEG 11-22
Date: May 24, 2022
From: Paul Bigioni
Director, Corporate Services & City Solicitor
Subject: City of Pickering Sale to SBB Industrial (Seaton) Limited Partnership
- Part of PINs 26402-0167(LT), 26402-0096(LT) and 26386-0180(LT)
-File: L-4610-007-21
Recommendation:
1.That Council approve the following Agreements, subject to minor revisions as may be
acceptable to the Director, Corporate Services & City Solicitor and the Chief
Administrative Officer:
(a)Agreement of Purchase and Sale dated March 22, 2022, whereby the City has
agreed to purchase approximately 38.44 acres of Seaton employment lands from
Her Majesty the Queen in Right of Ontario as represented by the Minister of
Government and Consumer Services; and
(b)Agreement of Purchase and Sale whereby the City has agreed to sell the same
parcel of Seaton employment lands to SBB Industrial (Seaton) Limited
Partnership.
2.That Council authorize the Chief Administrative Officer to waive the conditions in section
6.04 of the Agreement referred to in 1(a) above if and when SBB Industrial (Seaton)
Limited Partnership waives its conditions in the Agreement referred to in 1(b) above;
3.That upon the waiver of the above conditions, City staff be directed to proceed with
completion of both of the above Agreements; and
4.That the appropriate City of Pickering officials be authorized to take the actions
necessary to implement the recommendations in this report.
Executive Summary: Attachment 1 is an Agreement of Purchase and Sale dated
March 22, 2022 (the “Purchase Agreement”), whereby the City has agreed to purchase
approximately 38.44 acres of Seaton employment lands (the “Property”) from Her Majesty
the Queen in Right of Ontario as represented by the Minister of Government and Consumer
Services (the "Province"). The Purchase Agreement is conditional upon the approval of City
Council prior to May 27, 2022.
Attachment 2 is a separate Agreement of Purchase and Sale (the “Sale Agreement”)
whereby the City has agreed to sell the Property to SBB Industrial (Seaton) Limited
Partnership (“SmartCentres”). The Sale Agreement is conditional for SmartCentres' benefit
until May 19, 2022.
LEG 11-22 May 24, 2022
Subject: City of Pickering Sale to SBB Industrial (Seaton) Limited Partnership Page 2
Council approval of both of these Agreements of Purchase and Sale and waiver of the
conditions in these Agreements will enable construction of commercial buildings on the
Property consistent with the City’s Official Plan Policies, and will create employment
opportunities within Seaton as contemplated by the Central Pickering Development Plan.
Financial Implications: The purchase price in the Purchase Agreement is the same as in
the Sale Agreement. The Purchase Agreement and the Sale Agreement will be closed on the
same date. All purchase costs are passed on to SmartCentres. SmartCentres also indemnifies
the City in respect of all servicing costs payable pursuant to the Seaton Landowners’ Group
Cost Sharing Agreement. SmartCentres is also required by the Sale Agreement to refund to
the City a proportionate share of any infrastructure costs that have been front-funded by the
City, to the extent that such infrastructure benefits the Property. In addition, SmartCentres is
required by the Sale Agreement to pay the City on closing an amount equal to the City’s land
transfer tax, registration fees, other taxes, legal, marketing and any other third party expenses
incurred by the City in relation to both the Purchase Agreement and the Sale Agreement.
Discussion: The Seaton employment lands (Pickering's Innovation Corridor) are
designated for prestige employment, and consist of approximately 323 hectares (800 acres)
owned by the Province. The City's Official Plan designates this land as being suitable for light
manufacturing, assembly and processing of goods, research and development facilities,
business services, graphics and design, data and communications, offices and ancillary retail
uses.
The Chief Administrative Officer executed the Purchase Agreement on March 22, 2022
(Attachment 1 to this Report). The Purchase Agreement is conditional on Council’s approval.
The Chief Administrative Officer also executed the Sale Agreement on March 22, 2022
(Attachment 2 to this Report). The Sale Agreement is conditional for SmartCentres’ benefit
until May 19, 2022. The Sale Agreement is also conditional for the City’s benefit, on the City
completing its purchase of the Property pursuant to the Purchase Agreement.
Key Provisions of the Purchase Agreement:
Purchase Price: $9,801,002.00 ($255,000 per acre) plus applicable HST
Property Area: Approximately 38.44 acres
Closing Date: No later than June 15, 2022
Conditions: City Council approval obtained before May 27, 2022 and the Sale
Agreement is fully executed and binding.
Land Servicing Costs: City must assume responsibility to pay servicing costs under the
Seaton Landowners’ Group Cost Sharing Agreement.
LEG 11-22 May 24, 2022
Subject: City of Pickering Sale to SBB Industrial (Seaton) Limited Partnership Page 3
Participation Covenant: Repurchase - If, within ten years of closing, the Property is sold to a
third party for a price in excess of the purchase price in the Purchase
Agreement, the Province is entitled to take the difference. This is
intended to prevent speculation.
Right of First Offer - If a building permit and all required approvals
have not been obtained within five years of closing to allow
construction of a building of not less than 100,000 square feet, and if
such construction has not commenced, the Province is entitled to
repurchase the Property for the original purchase price plus servicing
costs incurred to the date of repurchase. This is intended to
encourage construction and occupancy, and to deter land banking.
Key Provisions of the Sale Agreement:
Purchase Price: Same as in Purchase Agreement
Property Area: Same as in Purchase Agreement
Closing Date: Same as in Purchase Agreement
Conditions: Due diligence conditional period expires on May 19, 2022 and City’s
Purchase Agreement is closed.
Land Servicing Costs: SmartCentres assumes all responsibility for all servicing costs under
the Seaton Landowners’ Group Cost Sharing Agreement and
indemnifies the City in respect of them.
ROFO and Repurchase: Repurchase - If, within five years of closing, the Property is sold to a
third party and building construction is not substantially completed,
the City can repurchase the Property for the original purchase price
(plus eligible expenses if construction has commended). This is
intended to prevent speculation.
Right of First Offer - If a building permit and all required approvals
have not been obtained within five years of closing to allow
construction of a building of not less than 100,000 square feet, and if
such construction has not commenced, the City is entitled to
repurchase the Property for the original purchase price plus servicing
costs incurred to the date of repurchase. This is intended to
encourage construction and occupancy, and to deter land banking.
The Property is shown in Attachment 3. SmartCentres has applied for site plan approval for
the Property, and intends to build a 22,417 square meter (241,295 square foot) multi-tenant
industrial building with office and warehouse space. Attachment 4 is the SmartCentres site
plan. Approximately one half of the building to be constructed by SmartCentres will be
occupied by a wholly-owned subsidiary of Bad Boy Furniture Warehouse Limited. The
remaining portion of the building will be made available for lease by SmartCentres. The
LEG 11-22 May 24, 2022
Subject: City of Pickering Sale to SBB Industrial (Seaton) Limited Partnership Page 4
undeveloped portion of the Property (north of the multi-tenant building) will be retained by
SmartCentres for future development. Council approval of both of these Agreements of
Purchase and Sale will enable construction of commercial buildings on the Property
consistent with the City’s Official Plan Policies, and will create employment opportunities
within Seaton as contemplated by the Central Pickering Development Plan.
At the present time, SmartCentres is completing its various due diligence searches.
SmartCentres has until May 22, 2022 to complete its searches and waive the inspection
condition in the Sale Agreement. Staff therefore recommend that Council authorize the Chief
Administrative Officer to waive the Council approval condition in the Purchase Agreement if
and when SmartCentres waives its condition in the Sale Agreement. This will enable the City
to proceed with both Agreements of Purchase and Sale. This will also ensure that the City
buys the Property only if SmartCentres has unconditionally agreed to buy it in turn from the
City.
Attachments:
1. Agreement of Purchase and Sale between Her Majesty the Queen in Right of Ontario as
Represented by the Minister of Government and Consumer Services and The
Corporation of the City of Pickering
2.Agreement of Purchase and Sale between The Corporation of the City of Pickering and
SBB Industrial (Seaton) Limited Partnership
3.Aerial photograph of the Property
4.SmartCentres Site Plan
Prepared/Endorsed By:
Original Signed By:
Paul Bigioni
Director, Corporate Services & City Solicitor
PB:ks
Recommended for the consideration
of Pickering City Council
Original Signed By:
Marisa Carpino, M.A.
Chief Administrative Officer
EXECUTION VERSION
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE
MINISTER OF GOVERNMENT AND CONSUMER SERVICES
as “Vendor”
and
THE CORPORATION OF THE CITY OF PICKERING
as “Purchaser”
AMENDED AND RESTATED AGREEMENT OF PURCHASE AND SALE
MARCH 22, 2022
Attachment # 1 to Report LEG 11-22
TABLE OF CONTENTS
SECTION 1 DEFINITIONS ......................................................................................................... 2
SECTION 2 AGREEMENT OF PURCHASE AND SALE ............................................................ 8
SECTION 3 DEPOSIT / PAYMENT OF PURCHASE PRICE ...................................................... 8
SECTION 4 HARMONIZED SALES TAX ................................................................................... 9
SECTION 5 "AS IS WHERE IS", PURCHASER’S INSPECTION PERIOD, AND
ENVIRONMENTAL INDEMNITY ........................................................................................... 10
SECTION 6 CLOSING CONDITIONS ...................................................................................... 14
SECTION 7 SALE APPROVAL ................................................................................................ 16
SECTION 8 CLASS EA REQUIREMENTS/ABORIGINAL CLAMS ......................................... 16
SECTION 9 RISK ..................................................................................................................... 18
SECTION 10 VENDOR'S WARRANTIES, REPRESENTATIONS AND COVENANTS ............. 19
SECTION 11 PURCHASER'S WARRANTIES, REPRESENTATIONS AND COVENANTS ...... 19
SECTION 12 SEVERANCE ....................................................................................................... 20
SECTION 13 INTENTIONALLY DELETED ............................................................................. 20
SECTION 14 TITLE.................................................................................................................. 20
SECTION 15 NO ASSIGNMENT ETC. ..................................................................................... 21
SECTION 16 DEVELOPMENT AGREEMENTS ....................................................................... 22
SECTION 17 PREPARATION OF TRANSFER/DEED DOCUMENTS AND FEES/COSTS ....... 23
SECTION 18 TENDER .............................................................................................................. 23
SECTION 19 ADJUSTMENTS .................................................................................................. 24
SECTION 20 ELECTRONIC REGISTRATION ........................................................................ 24
SECTION 21 CLOSING DELIVERABLES................................................................................ 25
SECTION 22 NOTICE .............................................................................................................. 26
SECTION 23 CONFIDENTIALITY ........................................................................................... 27
SECTION 24 GENERAL ........................................................................................................... 28
SECTION 25 IRREVOCABLE PERIOD ................................................................................... 29
AMENDED AND RESTATED AGREEMENT OF PURCHASE AND SALE
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
AS REPRESENTED BY THE MINISTER OF GOVERNMENT AND
CONSUMER SERVICES
(hereinafter collectively called the “Vendor”)
OF THE FIRST PART
-and -
THE CORPORATION OF THE CITY OF PICKERING
(hereinafter called the “Purchaser”)
OF THE SECOND PART
RECITALS:
A.The Vendor and the Purchaser entered into an agreement of purchase and sale dated February 25th
respect to the Lands (the “Original Purchase Agreement”).
B.The Vendor and Purchaser wish to amend and restate the Original Purchase Agreement on the terms
and conditions contained herein.
C.The Vendor is the owner in fee simple of the property defined as the “Lands” in Section 1.01(vv)
of this Agreement.
D.Vendor and OILC hereby confirm that OILC is the designated agent of the Vendor.
E.The Lands are within the area covered by the “Central Pickering Development Plan” issued
pursuant to the Ontario Planning and Development Act, 1994, S.O. 1994, c.23.
F.The Lands are subject to the Development Agreements, and the Purchaser has agreed to assume
the Development Agreements as they relate to the Lands.
G.The Lands are subject to the Lease(s), and the Purchaser has agreed to assume the Lease(s) as they
relate to the Lands on the terms and conditions as described in this Agreement.
H.The Purchaser has offered to purchase the Property from the Vendor on the terms and conditions
hereinafter set forth.
NOW THEREFORE in consideration of the mutual covenants hereinafter set forth and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
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SECTION 1
DEFINITIONS
1.01 Definitions
Unless the context expressly or by necessary implication indicates a contrary meaning, the terms
defined in this Section 1.01 for all purposes of this Agreement, shall have the meanings set out below:
(a)“Adjustments” means the adjustments to the Purchase Price provided for and determined
pursuant to this Agreement.
(b)“Affiliate” has the meaning set out in the Business Corporations Act, R.S.O. 1990, c. B.
16.
(c)“Agreement” means collectively, this amended and restated agreement of purchase and
sale, all Schedules attached hereto and every properly executed instrument which by its
terms amends, modifies or supplements this Agreement.
(d)“Applicable Laws” means, collectively, all statutes, laws, by-laws, regulations, ordinances
and orders of any governmental Authority, including without limitation all Land Use
Regulations.
(e)“Approval Term” has the meaning ascribed to it in Section 7.03.
(f)“As Is Where Is” has the meaning ascribed to it in Section 5.01.
(g)“Assignee” has the meaning ascribed to it in Section 15.02.
(h)“Assignment and Assumption Agreement” means an agreement by which the Vendor
shall assign and the Purchaser shall become a party to a Development Agreement, Lease
or Permitted Encumbrance and whereby the Purchaser assumes the responsibility of the
Vendor with regard to the Property pursuant to such Development Agreement, Lea se or
Permitted Encumbrance.
(i)“Attribution Development Charges” means the Regional Attribution Water Supply DC
and the Regional Attribution Sanitary Sewerage DC (as such terms are defined in the Phase
1 RFEA) from time to time.
(j)“Attribution Prepayment” means the sum of the “Regional Attribution Water Supply DC
Prepayment” and the “Regional Attribution Sanitary Sewerage DC Prepayment” (as such
terms are defined in the Phase 1 RFEA) from time to time.
(k)“Authority” means any governmental or quasi-governmental authority, regulatory
authority, government department, agency, commission, board, tribunal, body or
department, or any court, whether federal, provincial or municipal, having jurisdiction over
the Property, or the use thereof, and includes the City and the Region.
(l)“Buildings” means, individually or collectively, as the context requires, all buildings,
structures and fixed improvements located on, upon or under the Lands, and all
improvements and fixtures of the Vendor contained in, upon or on such buildings and
structures which are used in the operation of same, and “Building” means any one of the
Buildings.
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(m)“Business Day” means any day on which the Government of Ontario normally conducts
business.
(n)“City” means the City of Pickering.
(o)“City Sale Approval” means the necessary internal approvals required for the Transaction
by the Council for the City.
(p)“Class EA” means the Class Environmental Assessment Process for the Ministry of
Infrastructure as it applies to OILC realty activities (being as at the Execution Date, the
“Ministry of Infrastructure Public Work Class Environmental Assessment (Office
Consolidation)”, as approved April 28, 2004 and amended on September 11, 2008 and on
October 31, 2012), as approved, amended, or renewed from time to time by the Minister
of the Environment and Climate Change pursuant to Section 14 of the Environmental
Assessment Act, R.S.O. 1990, c. E.18.
(q)“Class EA Requirements” has the meaning ascribed to it in Section 8.01.
(r)“Closing” means the closing of the Transaction, including without limitation, the payment
of the Purchase Price and the delivery of the closing documents in accordance with the
provisions of this Agreement.
(s)“Closing Date” means the first Business Day that is 15 days following the date the
Purchaser waives or satisfies its condition(s) contained in Section 5 and Section 6.04(b) of
this Agreement, provided that in no event shall the Closing Date occur after the Outside
Date.
(t)“Community Use Land” has the meaning ascribed to it in the Seaton CSA.
(u)“Contaminant” has, for the purposes of this Agreement, the same meaning as that
contained in the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended, and shall
include the requirements of any and all guidelines and/or policies issued by the Ontario
Ministry of the Environment and Climate Change and/or the Ministry of Labour.
(v)“Cost Shared Service” has the meaning ascribed to it in the Seaton CSA.
(w)“Crown Right Request” has the meaning ascribed to it in Section 12.01.
(x)“DC Credit Recovery Payment” has the meaning ascribed to it in Section 16.03.
(y)“Deposit” has the meaning ascribed to it in Section 3.01.
(z)“Developable Area Share” has the meaning ascribed to it in the Seaton CSA.
(aa) “Development Agreements” means, collectively, the Phase 1 RFEA, the Seaton CSA, the
Pickering FIA, the Seaton-Durham CSA and the Master Parks Agreement, and
“Development Agreement” means any one of such agreements.
(bb) “Development Agreement Payment” means any payment required to be made, or security
to be provided, to an Authority, to the Vendor, or to a trustee named under a Development
Agreement, by the Purchaser at Closing hereunder and whether required by an Assignment
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and Assumption Agreement or otherwise, and includes, but is not limited to, the DC Credit
Recovery Payment, Attribution Prepayment, Development Agreement Security,
Development Charge Payments, and Private Land Landowner Equivalency Payment.
(cc)“Development Agreement Security” means any security required to be delivered by a
Private Landowner pursuant to a Development Agreement, whether by letter of credit or
otherwise.
(dd)“Development Charge Credits” means the development charge credits earned pursuant
to the Phase 1 RFEA.
(ee) “Development Charge Prepayments” means the prepayments on account of the Regional
Attributions Development Charges required to be paid to the Region pursuant to the Phase
1 RFEA upon the development of Employment Lands.
(ff) “Drainage Area Share” has the meaning ascribed to such term in the Seaton CSA.
(gg) “Durham Owners” has the meaning ascribed to it in the Seaton-Durham CSA.
(hh) “Employment Lands” means those lands designated as “Prestige Employment Lands” in
the ‘Central Pickering Development Plan’.
(ii)“Environmental Law” means, collectively, all Applicable Laws and agreements with
governmental Authorities and all other applicable federal and provincial statutes,
municipal and local laws, common law and deed restrictions, all by-laws, regulations,
codes, licences, permits, orders, directives, guidelines, decisions rendered by any
governmental Authority relating to the protection of the environment, natural resources,
public health, occupational health and safety or the manufacture, processing, distribution,
use, treatment, storage, disposal, packaging, transport, handling, containment, clean-up or
other remediation or corrective action of any Hazardous Substance, and all authorizations
issued pursuant to such Applicable Laws, agreements or statutory requirements.
(jj) “Environmental Objection” has the meaning ascribed to it in Section 5.02.
(kk) “Environmental Reports” means the reports relating to the environmental condition of
the Lands as identified in Schedule C.
(ll)“Execution Date” means the date on which this Agreement has been executed and
delivered by all parties hereto.
(mm)“Expiry Date” has the meaning ascribed to it in Section 7.03.
(nn) “Further Class EA Extension Period” has the meaning ascribed to it in Section
8.02(d)(i).
(oo) “Further Extension Period” has the meaning ascribed to it in Section 8.03(b).
(pp) “Hazardous Substance” includes, but is not limited to any hazardous or toxic chemical,
waste, by-product, pollutant, contaminant, compound, product or substance, including
without limitation, any Contaminant, asbestos, polychlorinated biphenyls, petroleum and
its derivatives, by-products or other hydrocarbons and any other liquid, solid or gaseous
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material the exposure to, or manufacture, possession, presence, use, generation, storage,
transportation, treatment, release, disposal, abatement, cleanup, removal, remediation or
handling of, which is prohibited, controlled or regulated by any and is defined in or
pursuant to any Environmental Law.
(qq) “Heritage Requirements” has the meaning ascribed to it in Section 8.01(b).
(rr) “HST” has the meaning ascribed to it in Section 4.01 of this Agreement.
(ss) “Initial Class EA Extension Period” has the meaning ascribed to it in Section 8.02.
(tt) “Initial Extension Period” has the meaning ascribed to it in Section 8.03.
(uu) “Inspection Period” means that period of time which ends on the first Business Day that
is fifty-five days following the Execution Date.
(vv)“Lands” means the lands described in Schedule “A1” and outlined in red on the sketch
plan attached hereto as Schedule “A2”.
(ww) “Land Use Regulations” means collectively, any land use policies, regulations, by-laws,
or plans of any Authority that apply to the use of the Property, including the existing
Official Plans, zoning by-laws and zoning orders.
(xx)“Land Transfer Tax Affidavit” has the meaning ascribed to it in Section 17.01.
(yy) “Lease(s)” means all leases or licences of any portion of the Lands in force at Closing.
(zz) “Master Parks Agreement” means the Master Parks Agreement dated May 1, 2017
entered into by the City, and the owners of other development land in the Seaton
Community for the purpose of establishing arrangements pertaining to the satisfaction of
the park dedication requirements for the Seaton Community.
(aaa) “Municipality” means the municipality (or municipalities) where the Property is located.
(bbb) “Offer Date” means the date the offer herein is submitted to the Vendor by the Purchaser.
(ccc)“OILC” means Ontario Infrastructure and Lands Corporation.
(ddd)“Open Data” means data that is required to be released to the public pursuant to the Open
Data Directive;
(eee) “Open Data Directive” means the Management Board of Cabinet’s Open Data Directive,
updated on April 29, 2016, as same may be amended from time to time;
(fff) “Outside Date” means June 15, 2022, or such other date as the parties agree.
(ggg) “Participation Agreement” means the Participation Agreement attached hereto as
schedule G and to be entered into between the Vendor and the Purchaser at Closing.
(hhh) “Permitted Encumbrances” means, collectively, the encumbrances listed in Schedule B
and any encumbrances created under the terms of this Agreement.
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(iii)“Phase 1 RFEA” has the meaning ascribed to such term in the Seaton CSA.
(jjj) “Phase 1 RFEA Lands” has the meaning ascribed to such term in the Phase 1 RFEA.
(kkk) “Phase 1 Development” has the meaning ascribed to such term in the Seaton CSA.
(lll)“Pickering FIA” means the Financial Impacts Agreement dated November 26, 2015
entered into by the City, and the owners of other development land in the Seaton
Community for the purpose of confirming arrangements pertaining to the financing and
construction of certain infrastructure and other related matters affecting the development
of lands in Seaton.
(mmm)“Private Landowner” has the meaning ascribed to such term in the Seaton CSA.
(nnn) “Private Landowner Equivalency Payment” has the meaning ascribed to it in Section
16.06.
(ooo) “Property” means, collectively, all of the right, title and interest of the Vendor in and to
the Lands and the Buildings.
(ppp) “Property Documents” means the documents in OILC’s current possession and related to
the Property, as set out in Schedule C, and shall include, but shall not be limited to:
(A)executed copies of any assignable service contracts, operating agreements
and management agreements;
(B)copies of assignable guarantees and warranties of materials, workmanship,
labour and materials relating to the Property that are still in effect;
(C)copies of the Environmental Reports, heritage reports, archaeological
reports or any other report relating to the physical, geotechnical or
environmental condition of the Property;
(D)a copy of the Lease;
(E)copies of all Permitted Encumbrances which are not registered against title
to the Property; and
(F)any plan of survey of the boundaries of the Property.
(qqq) “Provincial Successor” has the meaning ascribed to such term in the Seaton CSA.
(rrr) “Purchase Price” means the total amount determined by Section 2.02 that shall be paid by
the Purchaser to the Vendor for the Property, exclusive of HST and subject to the
Adjustments.
(sss) “Purchaser’s Reports” has the meaning ascribed to it in Section 5.06.
(ttt) “Region” means the Regional Municipality of Durham.
(uuu) “Regional Infrastructure” has the meaning ascribed to it in the Seaton CSA.
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(vvv)“Requisition Date” has the meaning ascribed to it in Section 14.01.
(www) “Sale Approval” means the necessary internal governmental approvals required for the
Transaction including, but not limited to, the approval of the Lieutenant Governor-in-
Council pursuant to Section 9 of the Ministry of Infrastructure Act, 2011 S.O. 2011, C. 9,
Sched. 27.
(xxx)“Sale Approval Date” means the date that the Sale Approval was granted.
(yyy) “SCS” means SCS Consulting Group Ltd., being the professional land development
engineering consultants acting on behalf of the trustees under the Development
Agreements.
(zzz) “Seaton Community” means the developable land as determined by the Central Pickering
Development Plan, as may be further refined, and as determined by the Seaton CSA.
(aaaa) “Seaton CSA” means the Amended and Restated Cost Sharing Agreement dated
November 26, 2015 between the Vendor and other owners of development land in the
Seaton Community to provide for the sharing of the costs of development in the Seaton
Community.
(bbbb) “Seaton-Durham CSA” means an agreement dated November 26, 2015 between the
Vendor, the Private Landowners and the Durham Owners to provide for the recovery of
certain costs of construction of Regional Infrastructure to be incurred by the Vendor and
the Private Landowners pursuant to the Phase 1 RFEA from the Durham Owners.
(cccc)“Seaton Trustee” means the trustee as provided for in the Seaton CSA, as it is from time
to time. As of the Execution Date, the Seaton Trustee is North Pickering Community
Management Inc.
(dddd)“Servicing Costs” has the meaning ascribed to it in Section 16.07.
(eeee) “Subsequent Phase” means development of land in the Seaton Community, the
development of which is not covered by the Phase 1 RFEA, and for which no allocation of
sewer or water capacity has currently be granted by any Authority.
(ffff) “Transaction” means, collectively, the purchase and sale of the Property provided for in
this Agreement and all other matters contemplated in this Agreement.
(gggg) “Vendor” means Her Majesty the Queen in right of Ontario as represented by the Minister
of Government and Consumer Services and includes, for the purpose of any exculpatory
clause and indemnity included in this Agreement in favour of the Vendor, OILC, any
ministries, agencies, representatives, servants, employees, agents, invitees, officers,
directors, contractors and licensees of Her Majesty the Queen in right of Ontario and OILC,
and their brokers, service provider(s) and any other entity over whom the Vendor or OILC
may reasonably be expected to exercise control.
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SECTION 2
AGREEMENT OF PURCHASE AND SALE
2.01 The Vendor agrees to sell, transfer and assign to the Purchaser all of the right, title and interest of
the Vendor in the Property and the Purchaser agrees to purchase, acquire and assume the Property
from the Vendor for the Purchase Price which shall be paid by the Purchaser to the Vendor for the
Property, exclusive of HST and subject to the Adjustments on the Closing Date.
2.02 The Purchase Price shall be calculated by multiplying the area of the Lands in acres by a per acre
price of:
(a)TWO HUNDRED AND FIFTY-FIVE THOUSAND DOLLARS ($255,000) per acre.
It is estimated that the area of the Lands is approximately 38.4353 acres more or less, which would
result in a Purchase Price of NINE MILLION EIGHT HUNDRED AND ONE THOUSAND
AND TWO DOLLARS ($9,801,002.00).
2.03 The Purchaser shall NOT be entitled to direct title of the Property to any other person or entity at
Closing.
SECTION 3
DEPOSIT / PAYMENT OF PURCHASE PRICE
3.01 The Purchaser will pay to Vendor’s solicitor in trust, by wire transfer:
(a)Within two Business Days of the submission of this offer to purchase, a sum equal to five
percent (5%) of the estimated Purchase Price, as a deposit to be held in accordance with
the terms of this Agreement;
(b)Within two Business Days following the Execution Date, a further sum equal to five
percent (5%) of the estimated Purchase Price, as a deposit to be held in accordance with
the terms of this Agreement; and
(c)Within two Business Days following the satisfaction or waiver of the Purchaser’s
conditions in Section 6.04(a), a further sum equal to ten percent (10%) of the Purchase
Price, as a further deposit to be held in accordance with the terms of this Agreement
(collectively, the “Deposit”).
3.02 The parties authorize OILC to invest the Deposit with a Canadian bank as identified in Schedule I
of the Bank Act, R.S., 1991, c. B.46 (Canada) in a term or certificate of deposit (such investment to
be available to OILC through its trust account bank and which investment allows liquidation of the
investment as necessary for the anticipated Closing Date or earlier termination of this Agreement
as herein provided) if OILC determines, acting reasonably, that anticipated interest to be earned
will justify any related expenses, considering the rate of interest to be earned and the anticipated
time the Deposit will be held before Closing. Any and all interest earned thereon shall accrue to
the benefit of and, subject to Sections 3.03 and 5.03, be paid to the Purchaser forthwith following
the Closing Date or earlier termination of this Agreement.
3.03 If the Transaction is not completed in accordance with this Agreement for any reason other than
the default of the Purchaser hereunder, the Deposit shall, subject to Section 5.03, be returned to the
Purchaser with accrued interest, if any, forthwith after termination of this Agreement. If the
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Transaction is not completed in accordance with this Agreement due to a specific default by the
Purchaser, then the Deposit, together with all interest accrued thereon, shall be forfeited to the
Vendor as liquidated damages and not as a penalty.
3.04 If the Transaction is completed, the Deposit shall be credited against the Purchase Price due on
Closing and all interest accrued thereon shall be paid to the Purchaser or as it may direct forthwith
following Closing.
3.05 On Closing the Purchase Price shall be paid and satisfied as follows:
(a) by release of the Deposit to the Vendor; and
(b) the balance of the Purchase Price, as adjusted pursuant to this Agreement shall be paid on
the Closing Date by the Purchaser to OILC in trust by way of wire transfer, such payment
being deemed to have been made when OILC’s financial institution confirms receipt of
such wire transfer.
3.06 In addition to the Purchase Price, at Closing the Purchaser shall pay, or cause to be paid, all
Development Agreement Payments to the Vendor, to the applicable Authority, or to the applicable
trustee under a Development Agreement, as applicable.
3.07 The Purchaser acknowledges that at Closing it will be required to provide, or cause to be provided,
Development Agreement Security to the appropriate Authority pursuant to one or more of the
Development Agreements.
3.08 The Transaction shall be completed on the Closing Date at the offices of the Vendor’s solicitors.
SECTION 4
HARMONIZED SALES TAX
4.01 The Purchase Price does not include the Harmonized Sales Tax (“HST”) payable by the Purchaser
in respect of the purchase of the Property pursuant to the Excise Tax Act, R.S.C. 1985, c. E.15
(Canada) (the “Act”). Subject to Section 4.02, the Purchaser agrees to pay to the Vendor, on the
Closing Date, as a condition of completion of this Transaction by wire transfer, certified cheque or
bank draft, all HST payable as a result of this Transaction in accordance with the Act.
4.02 Notwithstanding Section 4.01 above, the Vendor shall not collect HST from the Purchaser in this
Transaction if, on Closing, the Purchaser is registered under the Act and in that event, the Purchaser
shall:
(a) file returns and remit such HST to the Receiver General for Canada when and to the extent
required by the Act; and
(b) provide to the Vendor, on the Closing Date, a certificate confirming that the Purchaser is
registered under the Act for the purposes of collecting and remitting HST, and confirming
its HST registration number under the Act, together with an indemnity in favour of the
Vendor for any and all HST, fines, penalties, actions, costs, losses, claims, damages or
expenses and/or interest which may become payable by, or assessed against, the Vendor as
a result of the Vendor’s failure to collect HST from the Purchaser on the Closing Date,
such certificate and indemnity to be in a form satisfactory to the Vendor’s solicitor, acting
reasonably,
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failing which the Purchaser shall pay to the Vendor on Closing the HST payable by the Purchaser
with respect to this Transaction and the Vendor shall remit such HST to the appropriate Authority
in accordance with the Act.
4.03 The Purchaser's obligations under this Section 4 shall survive and not merge on Closing.
SECTION 5
"AS IS WHERE IS",
PURCHASER’S INSPECTION PERIOD, AND ENVIRONMENTAL INDEMNITY
5.01 The Purchaser acknowledges and agrees that:
(a)in entering into this Agreement, the Purchaser has relied and will continue to rely entirely
and solely upon its own inspections and investigations with respect to the Property,
including, without limitation, the physical and environmental condition of the Property and
a review of any documentation respecting the Property, and the Purchaser acknowledges it
is not relying on any information furnished by the Vendor or any other person on behalf
of, or at the direction of, the Vendor in connection therewith;
(b)the Purchaser is purchasing and shall accept, assume and take title to the Property and any
improvements thereon in an “As Is, Where Is” condition. The term “As Is, Where Is”
means in its condition or state on the Offer Date, without any agreement, representation or
warranty of any kind whatsoever, either express or implied on the part of the Vendor, as to
the condition of the soil, the subsoil, the ground and surface water or any other
environmental matters, the condition of the Lands, suitability for development, physical
characteristics, profitability, the condition of the Buildings, or any other matter respecting
the Property whatsoever, including without limitation, compliance with Environmental
Law, the existence of any Hazardous Substance or Contaminant, the use to which the
Property may be put and its zoning, the development potential of the Property or the ability
of the Purchaser to obtain approvals with respect to the Purchaser’s intended development
of the Property, or as to the accuracy, currency or completeness of any information or
documentation supplied to the Purchaser in connection with the Property; and
(c)the Vendor shall have no obligations or responsibility to the Purchaser after Closing with
respect to any matter relating to the Property or the condition thereof. The provisions of
this Section 5.01 shall survive and not merge on Closing.
Without limiting the foregoing, the Purchaser accepts, assumes and takes title to the Property
subject to the land uses currently permitted on the Property by the applicable Land Use Regulations
and the Purchaser shall not make and is not authorized by the Vendor to make, prior to completion
of this Transaction, any applications to the Municipality or any governmental Authority for changes
or variances to the uses currently permitted on the Property, including without limitation changes
or variances to official plans and/or zoning by-laws applicable to the Property.
5.02 During the period of time commencing on the Execution Date and expiring on the expiration of the
Inspection Period, the Purchaser may carry out whatever investigations it considers necessary to
satisfy itself with respect to the condition of the soil, the subsoil, the ground and surface water or
any other environmental matter relating to the Property, including, without limitation, compliance
with Environmental Law, the existence of any Hazardous Substance or Contaminant.
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If as a result of such investigations the Purchaser has or acquires evidence within the Inspection
Period that there exists a condition of non-compliance with Environmental Law or the presence of
a Hazardous Substance or Contaminant on, in, at, under, emanating from or onto the Property that
would be in excess of the guidelines for any of the permitted uses under the current zoning by-law
affecting the Property, the risk or presence of which the Purchaser is not prepared to assume, then
the Purchaser shall, by written notice, provide such evidence to the Vendor within the Inspection
Period by way of a report of a recognized and qualified environmental consultant who shall specify
in detail the nature of the non-compliance, Hazardous Substance or Contaminant and quantify the
remediation cost (collectively, an “Environmental Objection”). Upon receipt of an Environmental
Objection, the Vendor may, at its option and in its sole discretion:
(a)undertake, as the Purchaser’s sole and exclusive remedy, to take such actions,
complete such work and/or implement such measures, in the Vendor’s sole
discretion as to means and methods, as may be necessary to correct the matter of
non-compliance prior to the Closing Date or as soon as reasonably possible after
the Closing Date if compliance prior to Closing is not, in the Vendor’s opinion,
reasonably possible, to the satisfaction of the Purchaser, acting reasonably;
provided that if the Vendor selects the option in this paragraph (a), the Vendor and
the Purchaser shall enter into an agreement on Closing providing for correction of
the non-compliance post-Closing as set out above, and for access to the Property
by the Vendor, which agreement shall be in form satisfactory to the parties and
their solicitors, each acting reasonably;
(b)credit the Purchaser, as the Purchaser’s sole and exclusive remedy, the quantified
cost of correcting the matter of non-compliance as an adjustment to the Purchase
Price, in an amount to be acceptable to the Purchaser, acting reasonably, in which
event the Purchaser shall, on Closing, expressly assume the obligation and
undertake to correct the matter of non-compliance as soon as possible after the
Closing Date and shall indemnify and save harmless the Vendor from and against
any and all claims, demands, costs, damages, expenses and liabilities whatsoever
arising from the Purchaser’s failure to remediate the Hazardous Substance,
Contaminant and/or matter of non-compliance;
(c)terminate this Agreement in which event the Deposit shall, subject to Section 5.03,
be returned to the Purchaser with accrued interest, and without further liability to
the Vendor; or
(d)refuse to do either (a), (b), or (c) above in which event the Purchaser shall have the
option of either: (i) completing the Transaction without adjustment to the Purchase
Price; or (ii) terminating this Agreement in which event the Deposit shall, subject
to Section 5.03, be returned to the Purchaser with accrued interest, and without
further liability to the Vendor.
The Vendor shall have fifteen (15) Business Days from receipt of the Environmental Objection to
make its election under (a), (b), (c) or (d) above by notice in writing to the Purchaser and in the
event the Vendor fails to make an election within said fifteen (15) Business Day period, the Vendor
will be deemed to have elected option (d) above. The Purchaser shall have twelve (12) days from
the date of the Vendor's election or deemed election under (d) above to elect, by notice in writing
to the Vendor, to terminate or complete as per paragraph (d) above and in the event the Purchaser
fails to make an election within said twelve (12) day period the Purchaser shall be deemed to have
elected to complete the Transaction without adjustment to the Purchase Price.
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5.03 During the Inspection Period, the Vendor will permit the Purchaser together with its employees,
agents or consultants access to the Property, at reasonable times and upon a minimum of one (1)
Business Days’ prior written notice to the Vendor, to carry out, at the Purchaser’s sole expense and
risk, such investigations, tests and inspections as the Purchaser deems necessary, provided that the
Purchaser takes all reasonable care in the conduct of such investigations, tests and inspections. All
tests, investigations and inspections conducted by the Purchaser or its representatives shall be
commenced and completed prior to the expiration of the Inspection Period and shall be carried out
as expeditiously as possible and at times and in such manner so as to not interfere with any tenants,
occupants or licensees on the Property or the operation and maintenance of the Property . The
Purchaser covenants and agrees to promptly repair or pay the cost of repair of any damage
occasioned during or resulting from such investigations, tests and inspections of the Property
conducted by the Purchaser or its representatives and to return the Property to substantially the
same condition it was in prior to such investigations, tests and inspections. The Vendor assumes no
responsibility for and the Purchaser shall indemnify and save harmless the Vendor from and against
any and all claims, demands, costs, damages, expenses and liabilities whatsoever arising from the
Purchaser’s and/or its agents’ or consultants’ presence on the Property or the Purchaser’s and/or its
agents’ or consultants’ activities on or in connection with the Property. The Vendor shall be entitled
to deduct from the Deposit paid by the Purchaser hereunder the amount of any losses, costs, claims,
third party actions, damages and expenses which the Vendor may suffer as a result of a breach of
this Section 5.03. The obligations in this Section 5.03 shall survive termination of this Agreement
for a period of two (2) years and shall not merge on Closing.
5.04 Intentionally Deleted.
5.05 The Vendor agrees to provide to the Purchaser, within five (5) days of the Execution Date, the
Property Documents listed in Schedule C. The Purchaser acknowledges and agrees that: (i) the
Property Documents are being provided to the Purchaser for informational purposes only and the
Vendor makes no representations or warranties whatsoever with respect to the content,
completeness or accuracy of the Property Documents, or the environmental or any other condition
of the Property; (ii) the Vendor shall not be liable to the Purchaser, its agents, employees or lending
institution in any way for any error, omission or inaccuracy contained in any Property Document;
and (iii) as of the Closing Date, the Purchaser shall become solely liable for all condi tions and
Hazardous Substances and/or Contaminants existing at the Property, whether known or unknown
by the Purchaser, and whether or not such conditions or Hazardous Substances and/or
Contaminants are disclosed in the Property Documents or have been discovered by Purchaser in
the course of its due diligence or other investigations or inspections of the Property. The Purchaser
shall be entitled to review the Property Documents and the Development Agreements during the
Inspection Period and the Vendor agrees to use commercially reasonable efforts to cause SCS to
deliver to the Purchaser any financial statements, projections and budgets with respect to the
Development Agreements requested by the Purchaser, acting reasonably, (the “Other
Information”).
5.06 The Purchaser covenants and agrees that the Property Documents provided by the Vendor and any
and all third party reports, findings, recommendations, opinions and information resulting from the
Purchaser’s due diligence (“Purchaser’s Reports”) and the information contained therein shall be
held in accordance with the confidentiality provisions set out in section 23. If this Agreement is
terminated for any reason, the Purchaser will promptly return to the Vendor all Purchaser’s Reports
and Property Documents without keeping copies. The Purchaser shall deliver to the Vendor
forthwith following receipt, copies of any and all Purchaser’s Reports the Purchaser commissions
or obtains during the course of its investigations.
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5.07 In the absence of: (i) the Purchaser delivering an Environmental Objection; and (ii) this Agreement
terminating as a result of the condition set forth in Section 6.04(a) not having been waived or
satisfied, the Purchaser shall be conclusively deemed to accept the Property in its As Is, Where Is
condition, having waived all requisitions concerning any matters relating to the Property, save for
any valid requisition on title made prior to the expiry of the Inspection Period, and the Purchaser
shall accept full responsibility for all conditions related to the Property, and the Purchaser shall
comply, at its sole cost, with all orders relating to the condition of the Property issued by any
competent government Authority, court or administrative tribunal, including any order issued
against the Vendor including without limitation, any non-compliance with Environmental Law or
relating to the existence of any Hazardous Substance or Contaminant.
5.08 As an inducement to, and as further consideration for, the Vendor agreeing to sell the Property to
the Purchaser upon the terms and conditions set forth in this Agreement, the Purchaser covenants
and agrees that, effective as of the Closing Date, the Purchaser shall forever release and covenant
not to sue the Vendor and its affiliates, subsidiaries, related legal entities, employees, directors,
officers, appointees and agents (each individually, a “Vendor Party” and collectively, the “Vendor
Parties”) with respect to anything arising out of the environmental or any other condition of the
Property as of the Closing Date or the presence of Hazardous Substances or Contaminants in, on,
under, or emanating from or onto the Property as of the Closing Date, regardless of whether such
environmental conditions or the presence of Hazardous Substances or Contaminants is known or
unknown by the Purchaser and regardless of whether such condition is set forth in the Property
Documents, the Purchaser’s Reports or any other report, document or information discovered
during the course of the Purchaser’s due diligence or otherwise. The foregoing release and covenant
not to sue shall apply to all claims at law or in equity, including, but not limited to, claims or causes
of action for personal injury or death, property damage, statutory claims under Environmental Laws
and claims for contribution. Nothing herein shall prevent the Purchaser from suing any third party
who is not a Vendor Party, for any such condition, provided that the Purchaser hereby indemnifies
and saves harmless the Vendor Parties for any claim made against a Vendor Party by any such third
party resulting from such law suit. The foregoing shall in no way prevent the Purchaser from
requiring compliance by the Vendor of any obligation to remediate which arises pursuant to Section
5.02(a).
5.09 From and after the Closing Date, the Purchaser shall be responsible for, and hereby agrees to
indemnify, defend and save harmless the Vendor Parties from, any and all costs (including legal,
consultant and witness costs and fees), claims, demands, actions, prosecutions, administrative
hearings, fines, losses, damages, penalties, judgments, awards (including awards of costs) and
liabilities (including sums paid in settlement of claims), that may arise as a result of the condition
of the Property, the presence of Hazardous Substances or Contaminants in, on or under the Lands,
the Buildings or any structure or paved surface, or in any environmental medium (including, but
not limited to, the soil, groundwater, or soil vapour on or under, or emanating from the Property),
any order issued by any Authority in connection with the condition of the Property, or any loss,
damage, or injury caused either directly or indirectly as a result of the condition of the Proper ty
including, without limitation, non-compliance with Environmental Law or the existence of any
Hazardous Substance or Contaminant. Without limiting the generality of the foregoing, this
indemnification shall specifically cover costs incurred, from and after the Closing Date, in
connection with any claim for personal injury and/or death, property damage, investigation of site
conditions and/or any clean-up, remedial, removal, monitoring or restoration work required by any
federal, provincial, or local government agency or political subdivision because of the presence of
Hazardous Substances, in, on or under the Lands, the Buildings or any environmental medium,
structure or paved surface or emanating therefrom.
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5.10 The parties agree to execute and exchange at the time of Closing such further documentation as
either party reasonably requests, including, but not limited to, an agreement whereby the Purchaser
shall reaffirm the release, covenant not to sue and indemnifications regarding the condition of the
Property and environmental matters set forth in this Section 5 in the form attached hereto as
schedule F. Notwithstanding the foregoing, the release, covenant not to sue and indemnifications
set forth in this Section 5 shall become effective and enforceable automatically upon the
registration of the Transfer/Deed of Land in respect of the Property in favour of the Purchaser, and
Purchaser shall be bound by them, regardless of whether or not Purchaser executes any separate
instrument at the time of Closing.
5.11 Unless otherwise expressly set out herein, this Section 5 shall not merge but shall survive the
Closing Date and shall be a continuing obligation of the Purchaser.
SECTION 6
CLOSING CONDITIONS
6.01 The obligation of the Vendor to complete the Transaction is conditional upon fulfillment of each
of the following conditions on or before the Closing Date or any earlier date or time specified in
this Agreement:
(a)the Vendor shall have obtained the Sale Approval pursuant to Section 7 of this Agreement;
(b)all of the terms, covenants and conditions of this Agreement to be complied with or
performed by the Purchaser shall have been complied with or performed in all material
respects at the times contemplated in this Agreement;
(c)the representations and warranties of the Purchaser set forth in this Agreement shall be true
and accurate in all material respects as if made as of the Closing;
(d)the Purchaser shall have executed all documents required to assume the obligations of the
Vendor pursuant to the Development Agreements, including all required Assignment and
Assumption Agreements; and
(e)all documents and deliveries required to be executed and/or delivered by the Purchaser
shall have been executed and delivered to the Vendor in accordance to this Agreement.
6.02 The conditions set forth in Section 6.01 are for the sole benefit of the Vendor and may be waived
in whole or in part by the Vendor, or by its solicitors on its behalf, in the sole and absolute discretion
of the Vendor by written notice to the Purchaser. The conditions are conditions precedent to the
obligation of the Vendor to complete the herein Transaction on the Closing Date.
6.03 If a condition set forth in Section 6.01 is not fulfilled within the applicable time period, if any, and
the Vendor fails to notify the Purchaser or the Purchaser’s solicitors that such condition has been
waived or the time period for compliance has been extended within the applicable time period
allowed, if any (save and except for any condition which is to be satisfied on the Closing in
connection with which it is hereby agreed that upon successful completion of the Transaction, such
condition shall be deemed to have been satisfied), at the Vendor’s sole option, this Agreement shall
be null and void, notwithstanding any intermediate act or negotiations, and (i) in the event the
Agreement is terminated as a result of the condition set forth in Section 6.01(a), neither the Vendor
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nor the Purchaser shall, subject to Section 5.03, be liable to the other for any loss, costs or damages,
and the Deposit shall, subject to Section 5.03, be returned to the Purchaser with interest and without
deduction, and (ii) in the event the Agreement is terminated as a result of the non-fulfilment of any
of the conditions set forth in Section 6.01(b), 6.01(c) or 6.01(d), the Deposit shall be forfeited to
the Vendor as liquidated damages and not as a penalty.
6.04 The obligation of the Purchaser to complete the Transaction is conditional upon fulfillment of each
of the following conditions on or before the Closing Date or any earlier date or time specified in
this Agreement:
(a)the Outside Date has not occurred;
(b)On or before the expiration of the Inspection Period:
(i)the City has obtained the City Sale Approval, which approval may be provided in
the sole and unfettered discretion of the City and which the Vendor acknowledges
may be arbitrarily and unreasonably withheld; and
(ii)the City has entered into a binding agreement of purchase and sale with the ultimate
purchaser of the Lands, on terms acceptable to the City in its sole and unfettered
discretion.
(c)all of the terms, covenants and conditions of this Agreement to be complied with or
performed by the Vendor shall have been complied with or performed in all material
respects at the times contemplated in this Agreement;
(d)the representations and warranties of the Vendor set forth in this Agreement shall be true
and accurate in all material respects as if made as of the Closing; and
(e)all documents and deliveries required to be executed and/or delivered by the Vendor shall
have been executed and delivered to the Purchaser in accordance to this Agreement.
6.05 The conditions set forth in Section 6.04 are for the sole benefit of the Purchaser and may be waived
in whole or in part by the Purchaser, or by its solicitors on its behalf, in the sole and absolute
discretion of the Purchaser by written notice to the Vendor. The conditions are conditions precedent
to the obligation of the Purchaser to complete the herein Transaction on the Closing Date.
6.06 If the conditions set forth in Section 6.04(a) or (b) are not fulfilled within the applicable time period
and/or the Purchaser fails to notify the Vendor or the Vendor’s solicitors that such condition has
been waived, this Agreement shall be null and void, and the Deposit shall, subject to Section 5.03,
be returned to the Purchaser with interest and without deduction.
6.07 If a condition set forth in Section 6.04 is not fulfilled within the applicable time period, if any,
and/or the Purchaser fails to notify the Vendor or the Vendor’s solicitors that such condition has
been waived or the time period for compliance has been extended within the applicable time period
allowed, if any (save and except for any condition which is to be satisfied on the Closing in
connection with which it is hereby agreed that upon successful completion of the Transaction, such
condition shall be deemed to have been satisfied), at the Purchaser’s sole option, this Agreement
shall be null and void, notwithstanding any intermediate act or negotiations, the Deposit shall,
subject to Section 5.03, be returned to the Purchaser with interest and without deduction.
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SECTION 7
SALE APPROVAL
7.01 The obligation of the Vendor to complete the Transaction is conditional upon fulfillment of the
following condition: within thirty (30) days from the Offer Date, the Vendor shall have obtained
the Sale Approval, which approval the Purchaser acknowledges may be arbitrarily and
unreasonably withheld. The Vendor shall notify the Purchaser if and when such approval is
obtained, and the date of such notification if obtained shall be the date of commencement of the
Inspection Period.
7.02 The Purchaser agrees that should the Vendor be unable to satisfy the condition set out in Section
7.01 within the said thirty (30) day period, then the Vendor may, at its option and in its sole
discretion, extend this time period for an additional fifteen (15) days by notice in writing to the
Purchaser within the initial thirty (30) day period, provided that such date shall not extend beyond
the Inspection Period.
7.03 The Purchaser acknowledges that any Sale Approval that the Vendor obtains with respect to the
Property may be subject to the limitations stated therein, including but not limited to a limitation
that such approval shall be valid for a specified period of time from the date of such Sale Approval
(the “Approval Term”), in which event such Sale Approval shall cease to be valid on the date
upon which the Approval Term concludes (the “Expiry Date”), or on such date that such other
limitation(s), if any, is/are not met and satisfied. In the event that the Vendor shall have obtained a
Sale Approval for the Property in satisfaction of the condition set out in Section 7.01, and in the
event that the completion of the Transaction has not occurred on or before the Expiry Date set out
in such Sale Approval or such date that such other limitation(s), if any, is/are not met and satisfied,
notwithstanding any waiver of the condition set out in Section 7.01, this Agreement shall then be
null and void, the Deposit and any interest accrued thereon shall, subject to Section 5.03, be
returned to the Purchaser and neither the Vendor nor the Purchaser shall, subject to Section 5.03,
be liable to the other for any loss, costs or damages.
SECTION 8
CLASS EA REQUIREMENTS/ABORIGINAL CLAIMS
8.01 The obligation of the Vendor to complete the Transaction is conditional upon fulfillment of the
following condition on or before the Closing Date: the Vendor shall have completed the Class EA
for the Property and the Transaction (collectively, the “Class EA Requirements”). For purposes
of this condition, the Class EA Requirements shall, without limitation, include and be deemed to
include the following specific requirements:
(a)the requirements of the Environmental Assessment Act, R.S.O. 1990, c.E. 18, as approved,
amended, or renewed from time to time, as they apply to the Property and the Transaction
(the “Environmental Requirements”); and
(b)the requirements of the Standards & Guidelines for Conservation of Provincial Heritage
Properties issued by the Ministry of Tourism, Culture and Sport pursuant to Section 25.2
of the Ontario Heritage Act, R.S.O. 1990, c.O.18, as approved, amended, or renewed from
time to time, as they apply to the Property and the Transaction (the "Heritage
Requirements").
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8.02 Notwithstanding any other provision of this Agreement, the completion of the Transaction is
subject to continuing compliance to the Closing Date with all Class EA Requirements. In the event
that prior to the Closing Date:
(a)any governing Authority makes or issues, or the Vendor receives any notice or
communication from any governing Authority that it is considering whether to make or
issue, any order or directive pursuant to the Class EA Requirements that necessitates that
the Vendor, in addition to the actions and measures taken aforesaid, take other or different
actions or measures to comply with the Class EA Requirements (including, without
limitation, an order or directive requiring the Vendor to comply with Part II of the
Environmental Assessment Act);
(b)a written request has been made to the Minister of the Environment, of which the Vendor
has notice, that other or different measures be taken to comply with the Class EA
Requirements;
then the Vendor may, at its option and in its sole discretion, extend the Closing Date for at least an
additional thirty (30) days (the “Initial Class EA Extension Period”) by notice in writing to the
Purchaser during which time the Vendor shall:
(c)use reasonable efforts to determine whether the request in subsection (b) above has been
satisfied or has been refused; and
(d)at its option and in its sole discretion, either:
(i)comply with such order or directive (as the same may be modified or withdrawn)
at its own expense, in which event the Vendor may extend the Closing Date up to
(but no more than) three times, for a further period of thirty (30) days each (for a
maximum of ninety (90) days in the aggregate) (collectively, the “Further Class
EA Extension Period”); or
(ii)within the Initial Class EA Extension Period or at any time within the Further Class
EA Extension Period, terminate this Agreement by written notice to the Purchaser,
in which case this Agreement shall be null and void and of no further force and
effect and the Deposit and any interest accrued thereon shall, subject to Section
5.03, be returned to the Purchaser and neither party shall be further liable to the
other pursuant to this Agreement other than the Purchaser’s obligations purs uant
to Section 5.03 of this Agreement.
8.03 Notwithstanding any other provision of this Agreement, if at any time prior to the Closing Date the
Vendor receives notification or otherwise becomes aware of any claim or potential claim
whatsoever for an interest in respect of the Property, by any First Nation or other aboriginal group
or individual, in relation to any constitutional right, treaty right, land claim, surrender agreement
or consultation right, including, without limitation, an interest in the title to the Property, a right to
the use of the whole or any part of the Property, a restriction on the use of the Property or any part
thereof for any purpose, a restriction on access to the Property or any part thereof, a claim for
compensation, arising out of any interest or claimed interest in the Property or a right of
consultation in relation to the Property, then the Vendor may at its option and in its sole and
unfettered discretion extend the Closing Date for at least an additional thirty (30) days (the “Initial
Extension Period”) by notice in writing to Purchaser during which time the Vendor shall:
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(a) determine in its sole and unfettered discretion if such claim, potential claim or interest is
capable of being satisfied or whether appropriate releases can be obtained from all
interested parties to enable the Vendor to complete the sale of the Property to the Purchaser
by the Closing Date free and clear of any such claim, potential claim or interest;
(b) enter into arrangements which enable the Vendor to complete the sale of the Property in
accordance with Section 8.03(a), for which purpose it may extend the Closing Date up to
(but no more than) three times, for a further thirty (30) days each (for a maximum of ninety
(90) days in the aggregate) (collectively, the “Further Extension Period”); or
(c) within the Initial Extension Period or at any time within the Further Extension Period, have
the right to terminate this Agreement by written notice to the Purchaser in which case the
Agreement shall be null and void and of no further force and effect and neither party shall
be further liable to the other pursuant to this Agreement other than the Purchaser’s
obligations pursuant to Section 5.03 of this Agreement.
8.04 If at any time prior to Closing, the Vendor receives notification or otherwise becomes aware of any
requirements imposed by an Authority, including without limitation any additional Heritage
Requirements, not otherwise contemplated in this Section 8 and with which the Vendor must
comply as a condition of completing the Transaction, then the Vendor may at its option and in its
sole and unfettered discretion extend the Closing Date up to three (3) times for a period of thirty
(30) days each time (maximum ninety (90) days) by notice in writing to Purchaser during which
time the Vendor shall:
(a) determine in its sole and unfettered discretion if such requirement can be satisfied so as to
enable the Vendor to complete the sale of the Property to the Purchaser by the Closing
Date; or
(b) have the right, with or without a determination pursuant to subsecti on (a) above, to
terminate this Agreement by written notice to the Purchaser in which case the Agreement
shall be null and void and of no further force and effect and the Deposit plus any interest
accrued thereon shall, subject to Section 5.03, be returned to the Purchaser and neither
party shall be further liable to the other pursuant to this Agreement other than the
Purchasers obligations pursuant to Section 5.03 of this Agreement.
SECTION 9
RISK
9.01 Until completion of this Agreement on the Closing Date, the Property shall be and remain at the
risk of the Vendor, except as otherwise provided in Section 5. The Purchaser acknowledges that
the Vendor, in respect of damage to the Property, is self-insured. In the event of damage to the
Property on or before the Closing Date (other than damage occasioned during or resulting from
the Purchaser’s and/or its agents, consultants or representatives entries and/or activities on or to the
Property, in which event Section 5.03 shall govern) (the “Pre-Closing Damage”), the Vendor may
elect (i) to forthwith repair the Property to the same state and condition as it was in at the Offer
Date in which event the Purchaser will complete the Transaction without an abatement in the
Purchase Price; or (ii) to reduce the Purchase Price by an amount equal to the cost required to
complete the repair as estimated by an independent qualified architect or engineer jointly retained
by the Vendor and the Purchaser, acting reasonably and at arm’s length in which event the
Purchaser will complete the Transaction and accept a price reduction equal to such cost, or (iii)
unless the Purchaser agrees to accept title to the Property notwithstanding the election of the Vendor
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not to remediate or compensate to terminate this Agreement in which case the Deposit shall, subject
to Section 5.03, be immediately returned to the Purchaser, with interest and without deduction, and
neither party shall, subject to Section 5.03, have any further rights or obligations hereunder.
9.02 From and including the Closing Date, the Property shall be entirely at the risk of the Purchaser and
the Purchaser shall accept and assume any and all responsibilities and liabilities arising out of or in
any way connected with the Property whether they arose before, on or after the Closing Date and,
without being limited by the foregoing, any state, nature, quality or condition in, on, under or near
the Property existing as of the Closing Date, whenever and however arising, whether known or
unknown and whether environmental or otherwise, and whether such responsibilities and liabilities
are imposed by law, equity or any governing Authority.
SECTION 10
VENDOR'S WARRANTIES, REPRESENTATIONS AND COVENANTS
10.01 The Vendor represents and warrants to the Purchaser that the execution, delivery and performance
by the Vendor of this Agreement, and each agreement to be executed and delivered pursuant hereto
at Closing, to which the Vendor is a party are within the Vendor’s legal power and jurisdiction and
have been duly authorized and approved by all necessary action on the part of the Vendor.
10.02 The Vendor represents and warrants to the Purchaser that this Agreement has been, and each
agreement to be executed and delivered by the Vendor pursuant to this Agreement, will be duly
and validly executed and delivered by the Vendor, and this Agreement constitutes, and each
agreement to be executed and delivered pursuant hereto at Closing, when so executed and delivered
will constitute, the legal, valid and binding obligation of the Vendor, enforceable against the
Vendor in accordance with their respective terms.
10.03 The Vendor represents and warrants to the Purchaser that the Vendor is not a non-resident of
Canada within the meaning and intended purpose of Section 116 of the Income Tax Act, R.S.C.
1985, c.1 (5th Supp.).
10.04 The Vendor represents and warrants that there are no agreements, options, contracts or
commitments to sell, transfer or otherwise dispose of the Property or which would restrict the
ability of the Vendor to transfer the Property to the Purchaser.
10.05 Any information provided by the Vendor or its agents, including the Property Documents, and any
comments made by any Vendor Party are for the assistance of the Purchaser in allowing it to make
its own inquiries. The Vendor makes no representations or warranties as to, and takes no
responsibility for, the accuracy or completeness of the Property Documents or any other
information it has provided to the Purchaser.
SECTION 11
PURCHASER'S WARRANTIES, REPRESENTATIONS AND COVENANTS
11.01 The Purchaser represents and warrants to the Vendor that the Purchaser does not have a conflict of
interest with the Vendor or OILC or with any of their respective directors, officers, appointees,
employees or agents. The Purchaser agrees to provide a Statutory Declaration in the form attached
hereto as Schedule D at the time of execution by the Purchaser of this Agreement. The Purchaser
acknowledges that in the event that the information upon which the Statutory Declaration was
provided has changed, the Purchaser shall inform the Vendor of such change up to and including
the Closing Date.
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11.02 The Purchaser represents and warrants to the Vendor that the execution, delivery and performance
by the Purchaser of this Agreement, and each agreement to be executed and delivered pursuant
hereto at Closing, to which the Purchaser is a party are within the Purchaser’s legal power and
jurisdiction and, subject to the Purchaser obtaining the City Sale Approval in accordance with the
condition set forth in Section 6.04, will have been duly authorized and approved by all necessary
action on the part of the Purchaser.
11.03 The Purchaser represents and warrants to the Vendor that this Agreement has been, and, subject to
the Purchaser obtaining the City Sale Approval in accordance with the condition set forth in Section
6.04, each agreement to be executed and delivered by the Purchaser pursuant to this Agreement,
will be duly and validly executed and delivered by the Purchaser, and this Agreement constitutes,
and each agreement to be executed and delivered pursuant hereto at Closing, when so executed and
delivered will constitute, the legal, valid and binding obligation of the Purchaser, enforceable
against the Purchaser in accordance with their respective terms.
11.04 The Vendor shall deliver and the Purchaser shall accept possession of the Property on the Closing
Date in an As Is Where Is condition, subject to: (i) the Lease(s); (ii) the Development Agreements;
and (iii) the Permitted Encumbrances.
11.05 As of the Closing Date, the Purchaser shall assume and be responsible as owner for the management
and administration of the Property and the Vendor shall have no further responsibility whatsoever
therefor.
11.06 Without limiting the generality of the foregoing, the Purchaser shall comply with the terms of the
Permitted Encumbrances, any agreement entered into by the Vendor with any Authority relating to
the Property, all other agreements relating to public utilities and municipal services, the Land Use
Regulations, all relevant municipal by-laws and all registered restrictions. The Purchaser further
agrees and acknowledges that it shall be bound by any contractual obligations which the Vendor
may have entered into concerning the Property prior to the Closing Date, to the extent that such
contractual obligations have been disclosed to the Purchaser as part of the Property Documents or
otherwise, or are within the actual knowledge of the Purchaser.
SECTION 12
SEVERANCE
12.01 The Purchaser acknowledges that the Vendor will invoke “Crown Right” to sever property (i.e. the
ability of the Crown to divide land referenced under the subdivision control provisions of the
Planning Act) in connection with the Transaction.
SECTION 13
INTENTIONALLY DELETED
13.01 INTENTIONALLY DELETED
SECTION 14
TITLE
14.01 The Purchaser shall have until the day which is twenty (20) Business Days before the Closing Date
(the “Requisition Date”) to investigate title to the Property at the Purchaser's expense. The
Purchaser agrees not to call for the production of any title deed, abstract, survey or other evidence
of title to the Lands except such as are in the possession of OILC or the Vendor.
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14.02 On the Closing Date, the Purchaser shall accept title to the Property in an As Is Where Is condition
subject to the following:
(a)the Land Use Regulations;
(b)the Development Agreements and notices thereof;
(c)the Lease(s);
(d)all Community Use Land obligation pursuant to the Seaton CSA; and
(e)the Permitted Encumbrances.
The Purchaser agrees to satisfy itself with respect to compliance with all such agreements,
easements, restrictions or covenants, encumbrances and regulations referred to herein and agrees
that the Vendor shall not be required to provide any evidence of compliance with same.
14.03 If, prior to the expiry of the Inspection Period, the Purchaser furnishes the Vendor in writing with
a valid objection to title which the Vendor is unwilling or unable to remove, remedy and satisfy
and which the Purchaser will not waive, this Agreement shall be terminated notwithstanding any
intermediate acts or negotiations with respect to such objection, the Deposit shall, subject to Section
5.03, be returned to the Purchaser with interest and without deduction and the Vendor shall not be
liable for any costs or damages suffered by the Purchaser arising out of such termination or
otherwise out of this Agreement and parties shall have no further obligations or liabilities
hereunder.
14.04 The Vendor hereby consents to the relevant Municipality releasing to the Purchaser any information
in its records in connection with the Property and the Vendor agrees to execute and deliver such
necessary authorizations as the Purchaser may reasonably require in this regard but any such
authorization shall specifically prohibit the right of or a request for an inspection of the Property
by the Municipality or any other Authority.
SECTION 15
NO ASSIGNMENT ETC.
15.01 The Purchaser shall not assign or register this Agreement, or any assignment of this Agreement, or
any part of either, or register a caution in relation thereto, without , in each instance, obtaining the
prior written consent of the Vendor, which consent may be arbitrarily and unreasonably withheld.
15.02 If the Vendor consents to an assignment of this Agreement to a third party (the “Assignee”), the
Purchaser shall cause the Assignee and the Purchaser, to covenant in writing in favour of the
Vendor to be jointly and severally bound by and to jointly and severally perform their respective
obligations of this Agreement. The Purchaser shall not be released from its liabilities and
obligations hereunder in the event of an assignment to an Assignee.
15.03 In the event of any assignment of this Agreement to an Assignee, such Assignee shall provide a
similar representation, warranty and Statutory Declaration as required of the Purchaser in Section
11.01
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SECTION 16
DEVELOPMENT AGREEMENTS
16.01 The Purchaser agrees that at Closing it shall, as part of its acquisition of the Property, assume the
obligations of the Vendor regarding the Property pursuant to the Development Agreements, and it
covenants to make all payments required by such Development Agreements and provide any
Development Agreement Security required pursuant to any such Development Agreement, whether
such security is to be lodged with an Authority or otherwise, upon the execution of any applicable
Assignment and Assumption Agreement with the intent that the Purchaser shall be treated equally
with the other Private Landowners, except as explicitly provided in the Development Agreements.
16.02 The Purchaser acknowledges that the Development Agreements may have been registered against
title to the Property and further acknowledges that the development of the Property is subject to the
Development Agreements.
16.03 The Purchaser acknowledges and agrees that the Vendor has made payments and incurred expenses
which are subject to recovery by the Vendor through the issuance of Development Charge Credits
pursuant to the terms and conditions of the Phase 1 RFEA. The Purchaser agrees that at Closing,
and as a condition of Closing, that it shall reimburse the Vendor for all costs that the Vendor has
incurred which would be recoverable by the Vendor in the form of Development Charge Credits to
be issued pursuant to the Phase 1 RFEA in respect of the Lands. The Purchaser acknowledges and
agrees that the Seaton Trustee shall determine the amount Development Charge Credits entitlement
earned and attributable to the Lands based on the Developable Area Share of the Lands in the
Seaton Community, whether or not the Lands are within the Phase 1 Lands, and shall take into
account indexing as provided for in the Phase 1 RFEA. The payment from the Purchaser to the
Vendor pursuant to this section shall be referred to herein as the “DC Credit Recovery Payment”.
16.04 The Purchaser acknowledges that the Pickering FIA creates obligations with regard to the funding
of certain infrastructure in Seaton under the jurisdiction of the City. The Purchaser covenants and
agrees that it will abide by the terms and conditions of the Pickering FIA, and will execute any
Assignment and Assumption Agreement as reasonably required by the Vendor or the City.
Furthermore, the Purchaser acknowledges that the infrastructure projects to be funded pu rsuant to
the Pickering FIA are Cost Shared Services under the Seaton CSA, and the costs of which are to be
cost shared pursuant to the terms of the Seaton CSA.
16.05 The Purchaser acknowledges that the Lands include Phase 1 RFEA Lands and, therefore, prior to
the issuance of a building permit with respect to the development of such lands, unless otherwise
provided for in a front ending agreement relating to Subsequent Phase development, the Purchaser
will have to pay, in addition to any Attribution Development Charges payable with respect to the
development of the Lands, the Attribution Prepayment applicable to the Property. The Phase 1
RFEA provides that Development Charge Credits earned by virtue of the payment of the
Attribution Prepayment are not able to be utilized to satisfy the Attributions Development Charges
payable upon the issuance of building permits for lands that are Phase 1 RFEA Lands, and further
such Development Charge Credits will be administered by the Seaton Trustee.
16.06 The Purchaser acknowledges that on Closing the Purchaser will be a Provincial Successor (as such
term is defined in the Seaton CSA). Furthermore, by virtue of being a Provincial Successor the
Purchaser acknowledges and agrees that at Closing it will have to make a payment to the S eaton
Trustee in an amount to be determined by the Seaton Trustee pursuant to the terms of the Seaton
CSA, which will bring the Purchaser into a position in which the Purchaser will have funded the
costs of Regional Infrastructure pursuant to the Phase 1 RFEA on the same basis as the other Private
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Landowners within the Seaton Community, this payment to be referred to herein as the “Private
Landowner Equivalency Payment”.
16.07 The Purchaser acknowledges and agrees that at Closing, it will make a payment to the Vendor in
an amount equal to the portion of the costs incurred by the Vendor for Cost Shared Services
applicable to the Lands up to the Closing Date as confirmed by the Seaton Trustee, unless otherwise
provided for herein, whether on a Developable Area Share or Drainage Area share or otherwise as
applicable (referred to herein as “Servicing Costs”).
16.08 The Purchaser acknowledges that the Lands include Community Use Lands and that such
Community Use Lands are to be transferred to an Authority or the Seaton Trustee pursuant to the
terms of the Seaton CSA. The Purchaser acknowledges and agrees that it will abide by the terms
of the Seaton CSA with regard to such Community Use Lands which requires that they be conveyed
to an Authority or the Seaton Trustee, and further that the Assignment and Assumption Agreement
with regard to the Seaton CSA will specifically provide for such transfer of the Community Use
Lands.
16.09 The Seaton-Durham CSA provides for the recovery of certain costs of the construction of Regional
Infrastructure that relate to the over-sizing of such services for which Development Charge Credits
are not available. The Purchaser acknowledges that the Vendor has not made and is not making
any representations or warranties that any such construction costs will be recovered from the
Durham Owners.
SECTION 17
PREPARATION OF TRANSFER/DEED DOCUMENTS AND FEES/COSTS
17.01 The Transfer/Deed of the Lands will be prepared by the Vendor, except for the Affidavit of
Residence and Value of the Consideration (“Land Transfer Tax Affidavit”), which will be
prepared by the Purchaser.
17.02 The Purchaser shall pay its own legal costs and registration costs. The Purchaser shall be
responsible for the payment of any applicable Land Transfer Tax and registration fees and any other
taxes and fees which may be payable in connection with the registration of the transfer/deed of the
Property.
SECTION 18
TENDER
18.01 Any tender of money or documents pursuant to this Agreement may be made on the Vendor or the
Purchaser or their respective solicitors. Money must be tendered in Canadian funds by electronic
wire, bank draft or negotiable cheque certified by a Canadian chartered bank, trust company, or
credit union. The Vendor and the Purchaser acknowledge and agree that insofar as the tender of
any documents to be electronically registered is concerned, the tender of same will be deemed to
be effective and proper when the solicitor for the party tendering has complet ed all steps required
by Teraview in order to complete this Transaction that can be performed or undertaken by the
tendering party’s solicitor without the cooperation or participation of the other party’s solicitor,
and specifically when the tendering party’s solicitor has electronically “signed” the Transfer/Deed
of Land and any other closing document, if any, to be electronically registered for completeness
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and granted access to the other party’s solicitors to same, but without the necessity for the tendering
party’s solicitor actually releasing such documents to the other party’s solicitor for registration.
SECTION 19
ADJUSTMENTS
19.01 Adjustments between the Vendor and the Purchaser shall be made on the Closing Date for taxes,
local improvement rates, utility costs, rents, legal costs and other matters or items which are
ordinarily the subject of adjustment for the purchase and sale of a property similar to the Property
in the Province of Ontario. Such Adjustments shall be made on the basis that, except as may be
otherwise expressly provided for in this Agreement:
(a) the Vendor shall be responsible for all expenses and liabilities and entitled to all income
from the Property up to the Closing Date; and
(b) the Purchaser shall be responsible for all expenses and liabilities and entitled to all income
from the Property from and including the Closing Date.
19.02 Adjustments that cannot be determined on the Closing Date shall be determined by the parties as
soon after the Closing Date as is reasonably possible. Any amounts payable by one party to the
other, as determined by the parties, acting reasonably, shall be paid within thirty (30) days of the
request for such payment. On the Closing Date, the Vendor and the Purchaser shall exchange
undertakings to re-adjust the foregoing items, if necessary.
19.03 All Adjustments to be made under Section 19.01 shall be completed on or before the date which is
no later than six (6) months from the Closing Date and no re-adjustment may be made by either
party thereafter.
SECTION 20
ELECTRONIC REGISTRATION
20.01 Where the Property is in an area where electronic registration is mandatory and the Transaction
will be completed by electronic registration pursuant to Part III of the Land Registration Reform
Act, R.S.O. 1990, c. L.4, and the Electronic Registration Act, S.O. 1991, c.44, and any amendments
thereto, the Vendor and Purchaser acknowledge and agree that the exchange of closing funds, non-
registrable documents and other closing deliverables provided for herein and the release thereof to
the Vendor and Purchaser will:
(a) not occur at the same time as the registration of the transfer/deed (and any other documents
intended to be registered in connection with the completion of this Transaction); and
(b) be subject to conditions whereby the lawyer(s) receiving any of the closing deliverables
will be required to hold same in escrow and not release same except in accordance with the
terms of a document registration agreement between the said lawyers, the form of which is
as recommended from time to time by the Law Society of Upper Canada (the “Document
Registration Agreement”).
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SECTION 21
CLOSING DELIVERABLES
21.01 Subject to the provisions of this Agreement, the Vendor covenants that it shall execute or cause to
be executed and shall deliver or cause to be delivered to the Purchaser or the Purchaser’s solicitors
on or before the Closing Date, each of the following:
(a)possession of the Property in an As Is Where Is condition, subject to the Leases, and subject
to the rights of others as set out in the Permitted Encumbrances;
(b)an assignment of the Leases, whether complete or partial, the Development Agreements
and Permitted Encumbrances, as applicable;
(c)notice to the tenant(s) or licensee(s) pursuant to the Leases informing them of the sale of
the Lands and directing them to make future rent payments to the Purchaser;
(d)an executed Transfer/Deed of Land in registrable form duly executed by the Vendor in
favour of the Purchaser (save for any Land Transfer Tax Affidavit);
(e)an undertaking to re-adjust the statement of Adjustments, if necessary, upon written
demand;
(f)a direction regarding the payment of funds;
(g)statement of Adjustments;
(h)Document Registration Agreement as set out in Schedule E;
(i)A statement of the Development Agreement Payments in the form set forth at Schedule
H; and
(j)such other deeds, conveyances and other documents as the Purchaser or its solicitors may
reasonably require in order to implement the intent of this Agreement.
21.02 Subject to the provisions of this Agreement, the Purchaser covenants that it shall execute or cause
to be executed and shall deliver or cause to be delivered to the Vendor or the Vendor’s Solicitors
on or before the Closing Date:
(a)confirmation of wire transfer for the balance of the Purchase Price and Adjustments due on
the Closing Date;
(b)confirmation of wire transfer for any Development Agreement Payment payable to the
Vendor, including the DC Credit Recovery Payment, the Private Landowner Equivalency
Payment, and Servicing Costs;
(c)a certified cheque, bank draft or confirmation of wire transfer for any Development
Agreement Payment payable to the applicable trustee under a Development Agreement;
(d)confirmation of delivery of Development Agreement Security to any applicable authority
or trustee under a Development Agreement, if applicable
-26 -
(e)an undertaking to re-adjust the statement of Adjustments, if necessary, upon written
demand;
(f)HST Declaration and Indemnity, as contemplated in Section 4, if applicable;
(g)an updated Statutory Declaration in the form set out in Schedule D is required in the event
that there have been any changes to the information contained in the Statutory Declaration
provided to the Vendor prior to the Execution Date pursuant to Section 11.01;
(h)an updated Statutory Declaration in the form set out in Schedule D is required in the event
that there have been any changes to the information contained in the Statutory Declaration
provided to the Vendor prior to the date of execution of this Agreement pursuant to Section
11.01;
(i)Document Registration Agreement in the form attached as Schedule E;
(j)an Assignment and Assumption Agreement for the Leases;
(k)an Assignment and Assumption Agreement for each of the Development Agreements, in
substantially the same forms as were delivered as part of the closing of the Prior Purchased
Lands;
(l)a Participation Agreement in form attached hereto as schedule G;
(m)an Assumption Agreement for the Permitted Encumbrances, as applicable;
(n)the Purchaser’s Closing Agreement in the form attached hereto as schedule F;
(o)such other deeds, conveyances, resolutions and other documents as the Vendor or its
solicitors may reasonably require in order to implement the intent of this Agreement.
SECTION 22
NOTICE
22.01 Any notice or other communication required or permitted to be given hereunder (“Notice”) must
be in writing and must be given by email or by delivery. Any other means of notice will not be
effective for the purposes of this Agreement. If a Notice is given in accordance with the foregoing
sentence after 5:00 p.m. (Toronto time) on a Business Day, it shall be deemed to have been given
on the next Business Day thereafter and if it is given in accordance with the foregoing sentence on
or prior to 5:00 p.m. (Toronto time) on a Business Day, it shall be deemed to have been received
on such day. Notice of change of address will also be governed by this Section. Notices and other
communications will be addressed as follows:
The Corporation of the City of Pickering
One The Esplanade
Pickering
Ontario, L1V 6K7
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Attention: Paul Bigioni, Director, Corporate Services and City Solicitor
Email: pbigioni@pickering.ca
and to the Purchaser’s Solicitors at:
Torys LLP
79 Wellington Street West
Suite 3000
Box 270, TD Centre
Toronto
Ontario, M5K 1N2
Attention: Andy Gibbons / Nooreen Bhanji
Email: agibbons@torys.com / nbhanji@torys.com
and to the Vendor at:
c/o Ontario Infrastructure and Lands Corporation
Sales and Acquisitions
1 Dundas Street West
Suite 2000
Toronto, ON M5G 2L6
Attention: Vice President, Sales and Acquisitions
Email: ___________________
And:
Attention: Director, Legal Services (Real Estate and Leasing)
777 Bay Street,
Suite 900
Toronto, ON M5G 2C8
Email: ___________________
or to such other address as a party designates by Notice from time to time in accordance with the
foregoing.
SECTION 23
CONFIDENTIALITY
23.01 The Vendor and Purchaser agree to take all necessary precautions to maintain the confidentiality
of the terms and conditions contained herein. The parties acknowledge that this Agreement and any
information or documents that are provided hereunder may be released pursuant to the applicable
provisions of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, as
amended and the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990,
c.M.56, as amended and Open Data may be released pursuant to the Open Data Directive. This
-28 -
acknowledgment shall not be construed as a waiver of any right to object to the release of this
Agreement or of any information or documents.
23.02 The Purchaser agrees to ensure that the Purchaser, its officers, employees, agents and sub-
contractors shall, subject to Section 23.01, maintain the confidentiality and security of all materials
and information which is the property of the Vendor and in the possession or under the control of
the Purchaser pursuant to this Agreement. The Purchaser agrees to ensure that the Purchaser, its
officers, employees, agents and sub-contractors shall not directly or indirectly disclose or use, either
during or following the term of this Agreement, except where required by law, any material or
information belonging to the Vendor pursuant to this Agreement, without first obtaining the prior
written consent of the Vendor for such disclosure or use and in the event of termination of this
Agreement, the Purchaser will be responsible for returning all such documentation and information
to the Vendor without making copies.
SECTION 24
GENERAL
24.01 Time shall in all respects be of the essence of this Agreement, provided that the time for doing or
completing any matter provided for in this Agreement may be extended or abridged by an
agreement in writing, signed by the Vendor and the Purchaser or by an agreement between their
respective solicitors who are hereby expressly authorized in this regard. If anything in this
Agreement is to be done on a day which is not a Business Day, the same shall be done on the next
succeeding Business Day.
24.02 This Agreement shall be binding upon, and enure to the benefit of, the Vendor and the Purchaser
and their respective successors and permitted assigns. The Vendor and the Purchaser acknowledge
and agree that the representations, covenants, agreements, rights and obligations of the Vendor and
the Purchaser under this Agreement shall not merge on the completion of this Transaction, but shall
survive completion and remain in full force and effect and be binding upon the parties, save and
except as may be otherwise expressly provided for in this Agreement.
24.03 Whenever the singular is used in this Agreement, it shall mean and include the plural and whenever
the masculine gender is used in this Agreement it shall mean and include the feminine gender if the
context so requires.
24.04 This Agreement constitutes the entire agreement between the parties and supersedes all prior
agreements, whether oral or written, of the parties pertaining thereto, including the Original
Agreement. There is no representation, warranty, collateral agreement or condition affecting this
Agreement or the Property, except as specifically set forth in this Agreement. This Agreement may
not be modified or amended except by an instrument in writing signed by the parties hereto.
24.05 This Agreement and the rights and obligations of the Vendor and the Purchaser shall be determined
in accordance with the laws of the Province of Ontario.
24.06 Wherever this Agreement makes reference to a requirement for the consent or approval of the
Vendor, such consent must be prior written consent and may be arbitrarily and unreasonably
withheld in the sole and absolute discretion of the Vendor.
-29 -
24.07 No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver
of any other provision (whether or not similar) nor shall any waiver constitute a continuing waiver
unless otherwise expressed or provided.
24.08 If any provision of this Agreement or part thereof or the application thereof to any person or
circumstance, to any extent, shall be determined to be invalid or unenforceable, the remainder of
this Agreement or the application of such provisions or part thereof to any person, party or
circumstance other than those to which it is held invalid or unenforceable shall not be affected
thereby. Each covenant, obligation and agreement in this Agreement shall be separately valid and
enforceable to the fullest extent permitted by law.
24.09 Each of the parties hereto shall from time to time hereafter and upon any reasonable request of the
other and in such form as may be satisfactory to both parties hereunder, execute and deliver, make
or cause to be made all such further acts, deeds, assurances and things as may be required or
necessary to more effectually implement and carry out the true intent and meaning of this
Agreement.
SECTION 25
IRREVOCABLE PERIOD
25.01 Signature of this Agreement by the Purchaser and the submission thereof to the Vendor constitutes
an offer under seal, which is irrevocable for twenty-five (25) days from the date it is submitted to
the Vendor and open for acceptance by the Vendor during said twenty-five (25) day period. This
offer, once accepted on the Execution Date, constitutes a binding contract of purchase and sale.
This offer may be made and accepted by electronic transmission, including electronic signature
provided that the original hard copy, with original signatures is received by both parties within five
(5) days of the electronic acceptance. The Purchaser, in submitting this offer, acknowledges that
there has been no promise or representation or assurance given to the Purchaser that any of the
terms and conditions in this offer are or will be acceptable to the Vendor.
[no further text on this page]
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IN WITNESS WHEREOF the parties hereto have executed this Agreement as evidenced
by their properly authorized officers in that behalf as of the day and year first above written.
OFFERED BY the Purchaser this day of March, 2022.
THE CORPORATION OF THE CITY OF
PICKERING
By:
Name:
Title:
By:
Name:
Title:
I/We have authority to bind the
Corporation
ACCEPTED BY the Vendor this day of March, 2022.
HER MAJESTY THE QUEEN IN RIGHT
OF ONTARIO as represented by
THE MINISTER OF GOVERNMENT AND
CONSUMER SERVICES as represented by
ONTARIO INFRASTRUCTURE AND
LANDS CORPORATION
By:
Name:
Title:
By:
Name:
Title:
Authorizing Signing Officer
Marisa Carpino
Chief Administrative Officer
Toni Rossi
President, Real Estate
28th
38997-2007 33346622.5
SCHEDULE A-1
DESCRIPTION OF LANDS
Firstly
Part of Lot 24, Concession 5 Pickering, designated as Part 10 on Plan 40R-30896, City of Pickering,
being part of PIN 26402-0167(LT)
Secondly
Part of Lot 24, Concession 5 Pickering, designated as Part 31 on Plan 40R-29467, SAVE AND EXCEPT
Parts 5 and 6 on Plan 40R-25010, City of Pickering, being part of PIN 26402-0167(LT)
Thirdly
Part of the Road Allowance between Lots 24 and 25, Concession 5 Pickering, designated as Part 3 on
Plan 40R-29474, City of Pickering, being part of PIN 26402-0096(LT)
Fourthly
Part of Lots 25 and 26, Concession 5 Pickering, designated as Part 6 on Plan 40R-29467, City of
Pickering, being part of PIN 26386-0180(LT)
Fifthly
Part of Lots 25 and 26, Concession 5 Pickering, designated as Part 9 on Plan 40R-30896, City of
Pickering, being part of PIN 26386-0180(LT)
SCHEDULE A-2
SKETCH OF LANDS
...,-• 0n1.., ... o Seaton Lands -Bundle 6 Transaction 2
SCHEDULE B
PERMITTED ENCUMBRANCES
(a)General Encumbrances:
(i)the Leases and any notices of such Leases, if any, registered on title to the Lands,
including all easements, rights of way, restrictions, restrictive covenants,
servitudes and other similar rights in land contained in the Leases, which exist as
of the Closing Date and any leasehold mortgages or security interests relating to
tenants or the tenants’ interest in respect thereof and which do not encumber the
interest of the landlord thereunder;
(ii)liens for real property taxes (which term includes charges, rates and assessments)
or charges for electricity, power, gas, water and other services and utilities in
connection with the Property or for construction in connection with the Property
for amounts the payment of which is not yet due or delinquent;
(iii)any easements, rights of way, restrictions, building schemes, licences, restrictive
covenants and servitudes, rights of access or use, airport zoning regulations and
other similar rights in land (including, without limitation, rights of way and
servitudes for sewers, drains, gas and water mains, electrical power, telephone and
cable conduits, poles, wires or cables) granted to, reserved or taken by any person
which do not, in the aggregate, materially and adversely impair the use or
marketability of any of the Property for the purposes for which it is presently held,
and any rights reserved or vested in any Authority or public or private utility by
the terms of any lease, licence, franchise, grant, agreement or permit, subdivision,
development, servicing, encroachment, site plan, parking or other similar
agreement with any Authority or public or private utility;
(iv)title defects or irregularities which do not, in the aggregate, materially and
adversely impair the use of the Property for the purpose for which it is presently
held;
(v)any cost sharing, common use, reciprocal or other similar agreements relating to
the use and/or operation of the Property and/or adjoining properties provided the
same are complied with in all material respects and all security given by the parties
thereto to each other to secure their respective obligations thereunder;
(vi)any subsisting reservations, limitations, provisos, conditions or exceptions,
including royalties, contained in the original grant of the Property from the Crown;
(vii)any rights of expropriation, access or use, or any other right conferred or reserved
by or in any statute of Canada or the Province of Ontario;
(viii)the provisions of all applicable laws including by-laws, regulations, ordinances,
land use contracts, development agreements and similar instruments relating
(without limitation) to development, use and zoning;
(ix)encroachments by any improvements on the Property over adjoining lands and
easements or rights of way and/or any improvements on adjoining lands
encroaching on the Property which do not materially and adversely affect the
present use of the Property;
(x)all registered and unregistered agreements, easements, rights, covenants and/or
restrictions in favour of municipalities, publicly or privately regulated utilities or
adjoining owners, or that otherwise run with the Lands; and
(xi)any encroachments that are shown on existing surveys or as may be revealed by
an up-to-date survey.
(b) Specific Encumbrances:
(i)All instruments registered on title to the Property as of the Closing Date provided that the
Vendor is not in material breach thereof and, where applicable, consent to transfer to Purchaser, if
required, has been obtained, including but not limited to:
1.Notice of the Phase 1 RFEA;
2.Notice of the Pickering FIA;
3.Notice of the Seaton CSA;
4.Notice of the Seaton-Durham CSA.
SCHEDULE C
PROPERTY DOCUMENTS
Lease dated as of November 25, 1981 between HMQ, as landlord, and Kenneth Saunders and Joy
Saunders, the tenants, as amended by a lease amending agreement dated as of February 2, 1998.
Lease dated January 29, 2003 originally between the Vendor, as landlord, and TM Mobile Inc., together
with all amendments, renewal and assignments in respect thereof
SCHEDULE D
STATUTORY DECLARATION
Canada
Province of Ontario
TO WIT:
)
)
)
)
)
)
)
)
)
)
)
)
)
)
IN THE MATTER OF THE TITLE TO <>
AND IN THE MATTER OF A SALE THEREOF from HER
MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS
REPRESENTED BY THE MINISTER OF GOVERNMENT
AND CONSUMER SERVICES (the “Vendor”) to THE
CORPORATION OF THE CITY OF PICKERING (the
“Purchaser”)
I, ___________________, of the __________________, in the Province of Ontario,
DO SOLEMNLY DECLARE, that:
1.I am the _____________________{title} of the Purchaser and as such have knowledge of the
matters hereinafter declared.
2.The Purchaser and Ontario Infrastructure and Lands Corporation (“OILC”) are arm’s length parties
and the Purchaser has received no special knowledge nor special consideration in entering into the above
Agreement of Purchase and Sale, which would lead to the presumption that the parties are not arm’s length
parties.
3.The Purchaser and the Vendor are arm’s length parties and the Purchaser has received no special
knowledge nor special consideration in entering into the above Agreement of Purchase and Sale, which
would lead to the presumption that the parties are not arm’s length parties.
4.Except as expressly set out in Schedule A to this Declaration:
(a)to the best of the knowledge and belief of the undersigned, there are no outstanding legal
disputes or actions between the Vendor and Purchaser;
(b)the Purchaser is not in conflict with OILC with respect to the above transaction; and
(c)the Purchaser is not in conflict with the Vendor with respect to the above transaction.
AND I make this solemn Declaration conscientiously believing it to be true, and knowing that it is of the
same force and effect as if made under oath and by virtue of the Canada Evidence Act.
DECLARED by the above-named )
Declarant, before me at the __________ of )
__________, this )
day of , 202___. ) ________________________
)
)
A Commissioner, etc. )
SCHEDULE E
DOCUMENT REGISTRATION AGREEMENT
DOCUMENT REGISTRATION AGREEMENT
BETWEEN:
<>
(hereinafter referred to as the “Vendor’s Solicitor”)
AND:
<>
(hereinafter referred to as the “Purchaser’s Solicitor”)
RE: Her Majesty the Queen in right of Ontario as represented by the Minister of Government and Consumer
Services (the “Vendor”) sale to <> (the “Purchaser”) of the property legally described as <>, City of <>,
being the whole of PIN <>(LT) (the “Property” pursuant to an Agreement of Purchase and Sale between
the Purchaser, as purchaser, and the Vendor, as vendor, dated <> and accepted <> (the “Purchase
Agreement”), Scheduled to be completed on <> (the “Closing Date”)
FOR GOOD AND VALUABLE CONSIDERATION (the receipt and
sufficiency of which is hereby expressly acknowledged), the parties hereto hereby
undertake and agree as follows:
Holding Deliveries
In Escrow 1.The Vendor’s Solicitor and the Purchaser’s Solicitor shall hold all funds, keys and closing
documentation exchanged between them (the “Requisite Deliveries”) in escrow, and shall not release
or otherwise deal with same except in accordance with the terms of this Agreement. Both the
Vendor’s Solicitor and the Purchaser’s Solicitor have been authorized by their respective clients to
enter into this Agreement. Once the Requisite Deliveries can be released in accordance with the
terms of this Agreement, any monies representing payout funds for mortgages to be discharged shall
be forwarded promptly to the appropriate mortgage lender.1
Advising of
Concerns with
Deliveries
2.Each of the parties hereto shall notify the other as soon as reasonably possible following
their respective receipt of the Requisite Deliveries (as applicable) of any defect(s) with respect to same.
Selecting Solicitor
Responsible for
Registration
3.The Purchaser’s Solicitor shall be responsible for the registration of the Electronic
Documents (as hereinafter defined) unless the box set out below indicating that the Vendor’s
Solicitor will be responsible for such registration has been checked. For the purposes of this
Agreement, the solicitor responsible for such registration shall be referred to as the “Registering
Solicitor” and the other solicitor shall be referred to as the “Non-Registering Solicitor”:
Vendor’s Solicitor will be registering the Electronic Documents
1Solicitors should continue to refer to the Law Society of Upper Canada p ractice guidelines relating to recommended procedures to follow
for the discharge of mortgages.
□
Responsibility of
Non-Registering
Solicitor
4.The Non-Registering Solicitor shall, upon his/her receipt and approval of the Requisite
Deliveries (as applicable), electronically release for registration the Electronic Documents and shall
thereafter be entitled to release the Requisite Deliveries from escrow forthwith following the earlier
of:
a)the registration of the Electronic Documents;
b)the closing time specified in the Purchase Agreement unless a specific time has
been inserted as follows [________ a.m./p.m. on the Closing Date] (the “Release
Deadline”), and provided that notice under paragraph 7 below has not been
received; or
c)receipt of notification from the Registering Solicitor of the registration of the
Electronic Documents.
If the Purchase Agreement does not specify a closing time and a Release Deadline has not been
specifically inserted the Release Deadline shall be 6.00 p.m. on the Closing Date.
Responsibility of
Registering
Solicitor
5.The Registering Solicitor shall, subject to paragraph 7 below, on the Closing Date,
following his/her receipt and approval of the Requisite Deliveries (as applicable), register the
documents listed in Schedule A annexed hereto (referred to in this agreement as the “Electronic
Documents”) in the stated order of priority therein set out, as soon as reasonably possible once same
have been released for registration by the Non- Registering Solicitor, and immediately thereafter
notify the Non-Registering Solicitor of the registration particulars thereof by telephone or telefax (or
other method as agreed between the parties).
Release of Requisite
Deliveries by Non-
Registering Solicitor
6 Upon registration of the Electronic Documents and notification of the Non-Registering
solicitor in accordance with paragraph 5 above, the Non- Registering Solicitor shall be entitled to
forthwith release the Requisite Deliveries from escrow.
Returning
Deliveries where
Non-registration
7.Any of the parties hereto may notify the other party that he/she does not wish to proceed
with the registration2 of the Electronic Documents, and provided that such notice is received by the
other party before the release of the Requisite Deliveries pursuant to this Agreement and before the
registration of the Electronic Documents, then each of the parties hereto shall forthwith return to the
other party their respective Requisite Deliveries.
Counterparts
& Gender 8.This agreement may be signed in counterparts, and shall be read with all changes of gender
and/or number as may be required by the context.
Purchase
Agreement
Prevails if
Conflict or
Inconsistency
9.Nothing contained in this agreement shall be read or construed as altering the respective
rights and obligations of the Purchaser and the Vendor as more particularly set out in the Purchase
Agreement, and in the event of any conflict or inconsistency between the provisions of this
agreement and the Purchase Agreement, then the latter shall prevail.
Telefaxing
Deliveries
& Providing
Originals if
Requested
10.This agreement (or any counterpart hereof), and any of the closing documents hereinbefore
contemplated, may be exchanged by telefax or similar system reproducing the original, provided that
all such documents have been properly executed by the appropriate parties. The party transmitting
any such document(s) shall also provide the original executed version(s) of same to the recipient
within 2 business days after the Closing Date, unless the recipient has indicated that he/she does not
require such original copies.
2 For the purpose of this Agreement, the term “registration” shall mean the issuance of registration number(s) in respect of the Electronic
Documents by the appropriate Land Registry Office.
Dated this ______ day of <>, 202. Dated this _____ day of <>, 202
Name/Firm Name of Vendor’s Solicitor Name/Firm Name of Purchaser’s Solicitor
<> <>
________________________________ __________________________________
(Signature) (Signature)
Note: This version of the Document Registration Agreement was adopted by the Joint LSUC-CBAO Committee
on Electronic Registration of Title Documents on March 29, 2004 and posted to the web site on April 8, 2004.
Schedule “A”
1.Transfer from <> to <>.
SCHEDULE F
CLOSING AGREEMENT
TO: Her Majesty the Queen in right of Ontario as represented by the Minister of Government
and Consumer Services (the “Vendor”)
AND TO: Ontario Infrastructure and Land Corporation (the “Vendor’s Agent”)
RE: The Corporation of the City of Pickering (the “Purchaser”) purchase from the Vendor of the
property legally described as Part XXX, Concession XXX, Geographic Township of
Pickering, designated as Part XXX on Plan 40R-XXX, City of Pickering, Regional
Municipality of Durham (the “Property”) pursuant to an Agreement of Purchase and Sale
between the Purchaser and the Vendor dated XXX, as amended from time to time (the
“Purchase Agreement”)
In consideration of and notwithstanding the Closing of the Transaction and other good and valuable
consideration (the receipt and sufficiency of which is hereby acknowledged):
1.The Purchaser agrees to accept, assume and take title the Property and any improvements thereon in an
“As Is Where Is” condition in accordance with Section 5.01 of the Purchase Agreement.
2.The Purchaser confirms that all provisions of the Purchase Agreement that by their express terms are to
survive and not merge on Closing shall survive and not merge on Closing.
3.The Purchaser confirms that all representations and warranties made by the purchaser in the Purchase
Agreement remain true and correct as if repeated here.
4.The Purchaser reaffirms all indemnities made by it in the Purchase Agreement.
5.The Purchaser reaffirms the release and covenant not to sue provided for in Section 5.08 and 5.10 of the
Purchase Agreement.
6.This Agreement shall not merge on Closing but shall survive Closing.
7.Unless otherwise defined herein, all capitalized terms used herein have the meaning ascribed to them in
the Purchase Agreement.
8.The Vendor and Vendor’s Agent may rely on a signed electronically transmitted copy of this Agreement
which shall constitute and be treated for all purposes as signed original of this Agreement.
9.This Agreement shall be binding upon the successors and permitted assigns of the Purchaser and sh all
enure to the benefit of the Vendor and its successors and assigns.
DATED as of the XX day of XXX, 2022.
THE CORPORATION OF THE CITY OF
PICKERING
Per: _____________________________________
Name:
Title:
Per: _____________________________________
Name:
Title:
I have authority to bind the Corporation.
SCHEDULE G
PARTICIPATION AGREEMENT
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE
MINISTER OF GOVERNMENT AND CONSUMER SERVICES
-and-
THE CORPORATION OF THE CITY OF PICKERING
RECITALS:
A.Her Majesty the Queen in right of Ontario, as represented by the Minister of Government and
Consumer Services (the “Province”) is the owner in fee simple of the land described in Appendix
“A” to this Participation Agreement (the “Property”). Ontario Infrastructure and Lands Corporation
confirms that it is the designated agent of the Province.
B.The Corporation of the City of Pickering (the “Initial Transferee”) is the proposed transferee of the
Property as at the date hereof pursuant to an Agreement of Purchase and Sale between the Province
and the Initial Transferee, fully executed on <<Enter Date>> (the “Sale Agreement”).
NOW THEREFORE in consideration of the mutual covenants hereinafter set forth, the transfer of the
Property from the Province to the Transferee and other good and valuable consideration, the parties hereto
agree as follows:
1.For the purposes of this Participation Agreement:
“Affiliate” means a wholly owned subsidiary of the Transferee.
“Base Amount” means, subject to paragraph 11, [NTD – enter purchase price] in respect of the
Property, as such purchase price was adjusted pursuant to the Sale Agreement and, if applicable, is
recalculated based on a pro-rata basis in accordance with paragraph 2 below in respect of any
portion of the Property.
“Business Day” means any day on which the Government of Ontario normally conducts business.
“Closing Date” means the date upon which the Property is transferred by the Province to the
Transferee pursuant to the Sale Agreement, being <<Enter Closing Date>>.
“Development Agreements” has the meaning ascribed thereto in the Sale Agreement.
“Eligible Expenses” means, subject to paragraph 11, in respect of a Sale Interest, the aggregate of
the following:
(a)100% of the cumulative total of all hard and soft costs incurred in respect of capital
improvements (determined in accordance with generally accepted accounting principles)
made by or on behalf of the Transferee to the Sale Interest from and after the Closing Date;
unless a New Building has been built on the Property which has achieved Substantial
Completion, then 110% of the cumulative total of all hard and soft costs incurred in respect
of capital improvements (determined in accordance with generally accepted accounting
principles) made by or on behalf of the Transferee to the Sale Interest from and after the
Closing Date;
(b)for the purpose of calculating Profit only (and no, for certainty, for the purpose of calculating
the repurchase Purchase Price pursuant to paragraph 2 below) any real estate commission
payable by the Transferee in disposing of the Sale Interest to a Third Party purchaser in an
amount not to exceed the then current industry practice;
(c)reasonable legal and accounting fees paid by the Transferee in disposing of the Sale Interest;
(d)any amounts paid by the Transferee pursuant to the terms of the Development Agreements
in respect of the Sale Interest, less any amounts which the Transferee may have received by
way of development credits or otherwise in respect of the Sale Interest, during the period of
the Transferee’s ownership of the Sale Interest;
(e)the following in connection with the acquisition by the Transferee of the Sale Interest: (i)
reasonable legal and accounting fees paid by the Transferee; (ii) registration costs and land
transfer tax; and (iii) if applicable, all acquisition costs that the Transferee was required to
reimbursed to the Initial Transferee when the Transferee acquired the Sale Interest, including
land transfer tax reimbursed to the Initial Transferee.
“Profit” means, in respect of a Sale Interest, the amount by which the Sale Price, less the Eligible
Expenses, exceeds the Base Amount with respect to such Sale Interest.
“Sale Price” means, in respect of a Sale Interest that is proposed to be sold to a Third Party purchaser
or, if applicable, has been acquired by a Third Party purchaser from a Transferee, the value in lawful
money of Canada of all consideration and benefit paid or agreed to be paid for the Property or portion
thereof, including all buildings and improvements, by such Third Party purchaser dealing with the
Transferee, including the value of all chattels situate thereon which are then owned by the Transferee
and which are intended to pass on such sale transaction and the value of any encumbrances or
mortgages assumed by such purchaser or taken back as part of the consideration for such sale
transaction.
“Substantial Completion” means substantial performance of the New Building in accordance with
the Construction Act (Ontario), as amended.
“Term” means the period commencing on the date hereof and expiring on the date which is ten (10)
years following such date.
“Third Party” means, in respect of a Person, another Person that is not at arm’s length to such Person
or who is not an Affiliate of such Person.
“Transferee” means the Initial Transferee and any successor in title to the Property during the Term.
2.It is the express intention of the Province and the Transferee that there shall be no speculation with
respect to all or any portion of the Property. In the event of a sale or proposed sale of all or any portion
of the Property (the “Sale Interest”) by the Transferee to a Third Party at any time during the Term,
at the option of the Province, either: (i) the Province shall have the right to repurchase the Sale Interest
at a purchase price equal to the Base Amount plus the Eligible Expenses in respect thereof (as such
purchase price is calculated in accordance with this paragraph 2, the “Purchase Price”) and otherwise
on the terms and conditions set out in this paragraph 2; or (ii) one hundred percent (100%) of Profit,
if any, as defined below shall be paid to the Province and the amount of such Profit shall be a charge
on the Property in favour of the Province until paid. In determining the Base Amount and calculating
the Profit for a Sale Interest that is a portion of the Property, the Base Amount shall be adjusted and
calculated on a pro-rata basis based on the acreage of such portion being transferred, as shown by
evidence (e.g. a reference plan) provided by the Transferee to the Province at no cost to the Province,
to the satisfaction of the Province. With respect to any capital improvement costs or other costs or
expenses involved in the calculation of the Sale Price, Eligible Expenses, Profit or the price at which
the Province is to repurchase the Sale Interest in accordance with this Participation Agreement, the
Transferee shall provide all documents, records and invoices in sufficient detail, at no cost to the
Province, to allow analysis and approval of such calculation(s) by the Province. If the Transferee
intends to sell the Sale Interest to a Third Party, or otherwise market for sale the Sale Interest to Third
Parties, the following shall apply:
(a)The Transferee shall give a notice (the “Sale Notice”) to the Province, which Sale Notice
shall state such intentions, and shall contain an offer to sell to the Province the Sale Interest
at the Purchase Price and otherwise on the terms and conditions set out in this paragraph 2.
(b)The Province shall have the right, exercisable by notice in writing given to the Transferee
within 90 days following receipt of a Sale Notice (the “Offer Period”) to elect to:
(i)purchase the Sale Interest (the “Acceptance Notice”) at the Purchase Price and
otherwise on the terms and conditions set out in this paragraph 2; or
(ii)not to purchase the Sale Interest (the “Rejection Notice”) but instead to require that
one hundred percent (100%) of Profit, if any, as defined above shall be paid to the
Province if (and only if) the Transferee completes a sale of the Sale Interest with a
Third Party.
(c)If within the Offer Period, the Province delivers an Acceptance Notice to the Transferee,
there shall be created at such time, automatically and without any further action or
automatically and without any further action or documentation, an agreement of purchase
and sale between the Province and the Transferee pursuant to which the Transferee agrees to
sell to the Province, and the Province agrees to purchase from the Transferee, the Sale Interest
at the Purchase Price and on the terms and conditions set out in the Sale Agreement, mutatis
mutandis, including those terms and conditions in respect of Permitted Encumbrances (as
defined therein) and Development Agreements, provided that: (i) Closing will occur on the
date which is 60 days after the Province delivers the Acceptance Notice; (ii) if the Sale
Interest is subject to one or more tenancies with Third Party(ies), such tenancies shall be
assigned to the Province, and the Purchase Price shall be subject to customary adjustment in
respect thereof, all of which tenancy provisions shall be on terms and conditions customary
for tenanted industrial property in the Greater Toronto Area; and (iii) such agreement of
purchase and sale shall be subject to the Province obtaining any required approvals prior to
closing date as determined by this paragraph; provided that if such agreement of purchase
and sale terminates other than solely due to the Transferee’s default thereunder, the Province
shall be deemed to have delivered a Rejection Notice upon the occurrence of such
termination.
(d)If no notice is delivered by the Province pursuant to paragraph 2(b), the Province shall be
deemed to have delivered a Rejection Notice.
(e)If the Province delivers, or is deemed to have delivered, a Rejection Notice, the Transferee
may sell the Sale Interest to any Third Party at such purchase price and on such terms and
conditions it agrees to, in its sole and absolute discretion, with such Third Party; provided
that: (i) one hundred percent (100%) of Profit, if any, as defined above shall be paid to the
Province if (and only if) the Transferee completes such sale of the Sale Interest with a Third
Party; and (ii) if a sale of the Subject Interest does not occur within 180 days following the
date of delivery or deemed delivery of a Rejection Notice, the Transferee must again comply
with this paragraph 2 in respect of any future proposed sale of all or any part of the Property.
3.In the event that the Transferee has failed to:
(a)obtain and deliver copies to the Province, of all development approvals, building permits and
other third permits or consents required by Applicable Law from the City of Pickering or
other appropriate Authority to commence construction on the Property a building of not less
than 100,000 square feet (the “New Building”); and
(b)commence construction of the New Building, on or before the fifth anniversary of the date
of this Participation Agreement (the “Approval Period”), then at any time, and from time to
time, after expiry of the Approval Period, the Province shall have the right, but not the
obligation, upon written notice during the Repurchase Notice Period to the Transferee of its
intention to repurchase the Property (the “Repurchase Notice”), to repurchase the Property,
for a purchase price equal to:
(i)the Base Amount; plus
(ii)any amounts paid by the Transferee pursuant to the terms of the Development
Agreements, less any amounts which the Transferee may have received by way of
development credits or otherwise, during the period of the Transferee’s ownership
of the Property;
(c)Provided however that if the inability of the Transferee to commence construction of the New
Building during the Approval Period is a result of the City of Pickering or other appropriate
Authority refusing to issue the necessary permits and approvals or taking unreasonable delays
in issuing such permits and approvals following receipt of a complete application by the
Transferee for the New Building, and if the Transferee has submitted a complete application
to construct the New Building within four years of the date hereof, then the Approval Period
shall be extended during the time that the Transferee pursues approval of such plans at the
applicable Local Planning Appeal Tribunal or court with jurisdiction, in which case and the
Approval Period shall end four months after such applicable judicial process has completed
and all applicable appeal periods have passed.
4.If the Province delivers the Repurchase Notice to the Transferee during the Repurchase Notice Period,
there shall be created at such time, automatically and without any further action or documentation,
an agreement of purchase and sale between the Province and the Transferee pursuant to which the
Transferee agrees to sell to the Province, and the Province agrees to purchase from the Transferee,
subject to all required approvals to be obtained within 90 days, the Property at the price calculated in
accordance with paragraph 3 and substantially consistent with the terms and conditions set out in the
Sale Agreement, mutatis mutandis, including those terms and conditions in respect of Permitted
Encumbrances (as defined therein) and Development Agreements but otherwise to be in a form
agreed to by the Province and the Transferee, each acting reasonably, provided that: (a) Closing will
occur on the date which is 60 days after the Province delivers the written notice that it has received
all required approvals; and (b) the Transferee shall return the Property to the Province in its original
condition it was in immediately prior to the transfer of the Property from the Province to Initial
Transferee and, if applicable, the Transferee shall have the obligation to restore the Property to such
condition at no cost to the Province. Any delivery of the Repurchase Notice following the expiry of
the Repurchase Notice Period shall be null and void, and no agreement of purchase and sale shall be
created upon such delivery. In this Participation Agreement, “Repurchase Notice Period” means the
period commencing on the day following the fifth anniversary of the date of this Participation
Agreement and ending on the 120th day following such day.
5.The Transferee acknowledges that the Province may be required to obtain certain approvals to
exercise any of the options under this Participation Agreement.
6.The Province and the Transferee agree and acknowledge that the provisions of paragraph 2 shall not
be applicable to (and none of the following shall constitute a sale or transfer for the purposes hereof),
and the Transferee shall be entitled to do each of the following without triggering the provisions of
paragraph 2:
(a)any transfer or sale of a Sale Interest by the Transferee to an Affiliate of the Transferee
provided that the Transferee provides the Province with 15 days prior written notice of such
transfer and provided that each such transferee assumes the obligations of the Transferee in
compliance with paragraph 9 below; in the event of such a transfer or sale the Eligible
Expenses of such Transferee in regard to such Sale Interest shall be deemed to be the sum of
the costs of such Affiliate and of its affiliated Transferee from which it acquired such Sale
Interest; or
(b)any bona fide mortgage or encumbrance of the Property or any part thereof in favour of a
Third Party to secure the repayment of borrowings by the Transferor to the extent such
borrowings are in respect of the acquisition and/or improvement of the Property or any part
thereof and for no other purpose or property; or
(c)a sale by a bona fide Third Party mortgagee of the Property or any part thereof referred to in
paragraph (b) above following, provided however that such mortgagee and the Province, each
acting reasonably, enter into an acknowledgement and assumption of this Participation
Agreement, which acknowledgement and assumption shall not provide for a right of
repurchase for the Province upon such sale, but shall require payment of Profit resulting from
such sale by such mortgagee, and shall require that any transferee of the Property or part
thereof from such mortgagee enter into an assumption agreement in compliance with
paragraph 9 below.
7.The Transferee acknowledges and agrees that the Province shall have all the rights and remedies of
a secured party under the Personal Property Security Act and a mortgagee under the Mortgages Act
in the event that such Transferee fails to pay any amount owing to the Province pursuant to this
Participation Agreement.
8.On the Closing Date the Transferee will register in the appropriate land registry office a Notice of
this Participation Agreement on title to the Property immediately following the transfer to the
Transferee and prior to any mortgage or other instrument (other than Permitted Encumbrances
pursuant to, and as defined in, the Sale Agreement).
9.The Transferee acknowledges that the provisions of this Participation Agreement run with title to the
Property, and the Transferee covenants not to sell, transfer or otherwise alienate the Property or any
part thereof to any affiliated entity or any third party unless such transferee agrees in writing to
assume the obligations of the Transferee herein and be bound by the terms of this Participation
Agreement in respect of the Property or such part thereof, as the case may be, in a form satisfactory
to the Province.
10.At least 15 Business Days prior to the scheduled completion of a transfer of title to the Property or
portion thereof, the Transferee shall deliver to the Province a sworn declaration setting forth the
proposed Sale Price and Eligible Expenses and if there is any Profit, including information used to
calculate the Sale Price, Eligible Expenses and Base Amount in accordance with this Participation
Agreement, in reasonable detail to allow analysis and approval of the calculation of the Sale Price,
Eligible Expenses and Profit (if any) by the Province. The declaration shall also include the
calculation of the Profit payable by the Transferee to the Province. Prior to the completion of any
transfer of the Property or any portion thereof by the Transferee, the Transferee must first obtain the
approval of the calculation of the Sale Price, Eligible Expenses and the Profit, in writing, from the
Province, and make arrangements to pay the Profit to the Province, if any, which arrangements must
be satisfactory to the Province, acting reasonably.
11.In the case of a sale of a Sale Interest by a Transferee to a Third Party during the Term, the Profit
payable to the Province pursuant to Section 2(e) hereof shall take into account any Profit paid to the
Province pursuant to this Agreement on a prior sale of a Sale Interest to a Third Party during the
Term, it being the intent that the: (A) the Eligible Expenses in respect of each sale of a Sale Interest
shall be the relevant costs incurred by such Transferee during its period of ownership of such Sale
Interest; and (B) the Base Amount in respect of such Sale Interest shall be the Sale Price in respect
paid by such Transferee in respect thereof, calculated based on a pro-rata basis in accordance with
paragraph 2 above in respect of any portion of the Property if applicable.
12.Any notice or other communication required or permitted to be given hereunder ("Notice") must be
in writing and must be given by email or by delivery. Any other means of notice will not be effective
for the purposes of this Agreement. If a Notice is given in accordance with the foregoing sentence
after 5:00 p.m. (Toronto time) on a Business Day, it shall be deemed to have been given on the next
Business Day thereafter and if it is given in accordance with the foregoing sentence on or prior to
5:00 p.m. (Toronto time) on a Business Day, it shall be deemed to have been received on such day.
Notice of change of address will also be governed by this Section. Notices and other communications
will be addressed as follows:
[_________________]
and to the Transferee’s solicitor at:
[_________________]
and to the Province at:
c/o Ontario Infrastructure and Lands Corporation
Sales and Acquisitions
1 Dundas Street West
Suite 2000
Toronto, ON M5G 2L6
Attention: Vice President, Sales and Acquisitions
Facsimile: 416-327-3942
And:
Attention: Director, Legal Services (Real Estate and Leasing)
777 Bay Street,
Suite 900
Toronto, ON M5G 2C8
Facsimile: 416-326-2854
or at such other addresses as the parties may designate from time to time.
13.This Participation Agreement may be executed and delivered in counterparts and any such
counterpart may be delivered in its original form or by facsimile transmission and each of which
when so executed and delivered shall be deemed to be an original and such counterparts together
shall constitute one and the same Agreement.
14.This Participation Agreement shall be binding upon, and enure to the benefit of the Transferee and
the Province and their respective successors and permitted assigns.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK – SIGNING PAGE FOLLOWS]
DATED the <<Day>>, day of <<Month>>, <<Year>>.
THE CORPORATION OF THE CITY OF
PICKERING
Per:
Name:
Title:
By:
Name:
Title:
I/We have authority to bind the Corporation.
DATED the <<Day>>, day of <<Month>>, <<Year>>.
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
AS REPRESENTED BY THE MINISTER OF
GOVERNMENT AND CONSUMER SERVICES AS
REPRESENTED BY ONTARIO INFRASTRUCTURE
AND LANDS CORPORATION
Per:
Name: <<Director/Project Manager’s Name>>
Title: <<Title>>, Sales, Easements & Acquisitions
I have the authority to bind the Corporation.
APPENDIX “A”
[_________________]
Schedule H
DEVELOPMENT AGREEMENT PAYMENTS
RE: Her Majesty the Queen in Right of Ontario as Represented by the Minister of Government
and Consumer Services (the “Vendor”) s/t The Corporation of the City of Pickering (the
“Purchaser”)
[INSERT LEGAL DESCRIPTION]
Closing Date:
Development Agreement Payments to Vendor under Section 16.03 and 16.07
D/C Credit Recovery Payment $
Servicing Costs $
Seaton CSA $
Development Agreement Payments to Applicable Trustee under Section 16.06
Private Landowner Equivalency Payment $
Seaton CSA $
Seaton-Durham CSA $
Development Agreement Security under Section 16.01
Phase 1 RFEA $ Drawdown LC w/ Region of Durham
$ Security w/ Region of Durham
Seaton CSA $
Seaton-Durham CSA $
TOTAL AMOUNT $
All without duplication.
E.&O.E.
Attachment # 2 to Report LEG 11-22
3'8£11)1@J(H9Mfl065054
THE CORPORATION OF THE CITY OF PICKERING
as "Vendor"
and
SBB INDUSTRIAL (SEATON) LIMITED PARTNERSHIP
as "Purchaser"
AGREEMENT OF PURCHASE AND SALE
MARCH 22, 2022
EXECUTION COPY
TABLE OF CONTENTS
SECTION 1 DEFINITIONS ...................................................................................................................... 2
SECTION 2 AGREEMENT OF PURCHASE AND SALE ..............•...............•...........................•......... 7
SECTION 3 DEPOSIT/ PAYMF.NT OF PURCHASE PRICE ............................................................. 7
SECTION 4 HARMONIZED SALES TAX ........................................................................................... 10
SECTION 5 "AS IS WHERE IS", PURCHASER'S INSPECTION PERIOD, AND
ENVIRONM .. ENT AL INDEMNITY ....................................................................................................... t t
SECTION 6 CLOSING CONDITIONS ................................................................................................. 15
SECTION 7 EXTENSION OF CLOSING ............................................................................................. 17
SECTION 8 INTENTIONALLY DELETED ......................................................................................... 17
SECTION 9 RISK ..................................................................................................................................... 17
SECTION 10 VENDOR'S WARRANTIES, REJ>RESENTATIONS AND COVENANTS .............. 18
SECTION 11 PURCHASER'S WARRANTIES, REPRESENTATIONS AND COVENANTS ....... 19
SECTION 12 INTENTIONALLY DELETED ....................................................................................... 19
SECTION 13 INTENTIONALLY DELETED ....................................................................................... 19
SECTION 14 TITLF. ................................................................................................................................ 19
SECTION 15 NO ASSIGNMENT ETC .................................................................................................. 20
SECTION 16 DEVELOPMENT AGREEMENTS ................................................................................ 21
SECTION 17 PREPARATION OF TRANSFER/DEED DOCUMENTS AND FEES/COSTS ........ 23
SECTION 18 TENDER ............................................................................................................................ 24
SECTION 19 ADJUSTMENTS ............................................................................................................... 24
SECTION 20 ELECTRONIC REGISTRATION .................................................................................. 24
SECTION 21 CLOSING OF.LIVERABLES .......................................................................................... 25
SECTION 22 NOTICE ............................................................................................................................. 27
SECTION 23 CONFIDENTIALITY ...................................................................................................... 28
SECTION 24 GENERAL ......................................................................................................................... 28
SECTION 25 IRREVOCABLE PERIOD ....................................................................•......................... 29
:rsoo1,a,oo19M»06sos A
AGREEMENT OF PURCHASE AND SALE dated as of the 22nd day of March, 2022
BETWEEN:
THE CORPORATION OF THE CITY OF PICKERING
(hereinafter called the "Vendor")
-and-
SBB INDUSTRIAL (SEATON) LIMITED PARTNERSHIP,
by its general partner, SBB INDUSTRIAL (SEATON) GP INC.
(hereinafter called the "Purchaser")
OF THE FIRST PART
OF THE SECOND PART
RECITALS:
A. The Vendor has entered into an agreement of purchase and sale with Her Majesty The Queen in
Right of Ontario, as represented by The Minister of Government and Consumer Services, ("HMQ") for
the purpose of acquiring the fee simple to the property defined as the "Lands" in Section 1.0 I (nn) of this
Agreement (the "HMQ Purchase Agreement"), in order to immediately thereafter, sell such fee simple
interest in the Lands to the Purchaser.
B. HMQ is the owner in fee simple of the Lands as of the date hereof.
C. The Lands are subject to the Development Agreements, and the Purchaser has agreed to assume
the Development Agreements as they relate to the Lands.
D. The Lands are subject to the Lease(s), and the Purchaser has agreed to assume the Lease(s) as they
relate to the Lands on the terms and conditions as described in this Agreement.
E. The Purchaser has offered to purchase the Property from the Vendor on the terms and conditions
hereinafter set forth.
NOW THEREFORE in consideration of the mutual covenants hereinafter set forth and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
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SECTION!
DEFINITIONS
1,01 Definitions
Unless the context expressly or by necessary implication indicates a contrary meaning, the tenns
defined in this Section 1.0 I for all purposes of this Agreement, shall have the meanings set out below:
(a) "Adjustments" means the adjustments to the Purchase Price provided for and determined
pursuant to this Agreement.
(b) "Affiliate" has the meaning set out in the Business Corporations Act, R.S.O. 1990, c. B.
16.
(c) "Agreement" means collectively, this agreement of purchase and sale, all Schedules
attached hereto and every properly executed instrument which by its terms amends,
modifies or supplements this Agreement.
(d) "Applicable Laws" means, collectively, all statutes, laws, by-laws, regulations, ordinances
and orders of any governmental Authority, including without limitation all Land Use
Regulations.
( e) "As Is Where Is" has the meaning ascribed to it in Section 5.0 I.
(t) "Assignee" has the meaning ascribed to it in Section 15.02.
(g) "Assignment and Assumption Agreement" means an agreement by which the Vendor
shall assign and the Purchaser shall become a party to a Development Agreement, Lease
Permitted Encumbrance or the Participation Agreement and whereby the Purchaser
assumes the responsibility of the Vendor with regard to the Property pursuant to such
Development Agreement, Lease Permitted Encumbrance or the Participation Agreement.
(h) "Attribution Development Charges" means the Regional Attribution Water Supply DC
and the Regional Attribution Sanitary Sewerage DC (as such terms are defined in the Phase
I RFEA) from time to time.
(i) "Attribution Prepayment" means the sum of the "Regional Attribution Water Supply DC
Prepayment" and the "Regional Attribution Sanitary Sewerage OC Prepayment" (as such
terms are defined in the Phase I RFEA) from time to time.
G) "Authority" means any governmental or quasi-governmental authority, regulatory
authority, government department, agency, commission, board, tribunal, body or
department, or any court, whether federal, provincial or municipal, having jurisdiction over
the Property, or the use thereof, and includes the City and the Region.
(k) "Buildings" means, individually or collectively, as the context requires, all buildings,
structures and fixed improvements located on, upon or under the Lands, and all
improvements and fixtures of the Vendor contained in, upon or on such buildings and
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structures which are used in the operation of same, and "Building" means any one of the
Buildings.
(1) "Business Day" means any day on which the Government of Ontario normally conducts
business.
(m) "City" means the City of Pickering.
(n) "Closing" means the closing of the Transaction, including without limitation, the payment
of the Purchase Price and the delivery of the closing documents in accordance with the
provisions of this Agreement.
(o) "Closing Date" means , subject to Section 7.01 , the first Business Day that is 15 days
following following the satisfaction or waiver of the Purchaser's conditions in Section
6.04(a).
(p) "Community Use Land" has the meaning ascribed to it in the Seaton CSA.
( q) "Contaminant" has, for the purposes of this Agreement, the same meaning as that
contained in the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended, and shall
include the requirements of any and all guidelines and/or policies issued by the Ontario
Ministry of the Environment and Climate Change and/or the Ministry of Labour.
(r) "Cost Shared Service" has the meaning ascribed to it in the Seaton CSA.
(s) "DC Credit Recovery Payment" has the meaning ascribed to it in Section 16.03.
(t) "Deposit" has the meaning ascribed to it in Section 3.01.
(u) "Developable Area Share" has the meaning ascribed to it in the Seaton CSA.
(v) "Development Agreements" means, collectively, the Phase 1 RFEA, the Seaton CSA, the
Pickering FIA, the Seaton-Durham CSA and the Master Parks Agreement, and
"Development Agreement" means any one of such agreements.
(w) "Development Agreement Payment" means any payment required to be made, or security
to be provided, to an Authority, to the Vendor, or to a trustee named under a Development
Agreement, by the Purchaser at Closing hereunder and whether required by an Assignment
and Assumption Agreement or otherwise, and includes, but is not limited to , the DC Credit
Recovery Payment, Attribution Prepayment, Development Agreement Security,
Development Charge Prepayments, and Private Landowner Equivalency Payment.
(x) "Development Agreement Security" means any security required to be delivered by a
Private Landowner pursuant to a Development Agreement, whether by letter of credit or
otherwise.
(y) "Development Charge Credits" means the developm en t charge credits earned pursuant
to the Phase 1 RFEA.
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(z) "Development Charge Prepayments" means the prepayments on account of the Regional
Attributions Development Charges required to be paid to the Region pursuant to the Phase
1 RFEA upon the development of Employment Lands.
(aa) "Drainage Area Share" has the meaning ascribed to such term in the Seaton CSA.
(bb) "Durham Owners" has the meaning ascribed to it in the Seaton-Durham CSA.
(cc) "Employment Lands" means those lands designated as "Prestige Employment Lands" in
the 'Central Pickering Development Plan'.
(dd) "Environmental Law'' means, collectively, all Applicable Laws and agreements with
governmental Authorities and all other applicable federal and provincial statutes,
municipal and local laws , common law and deed restrictions, all by-laws, regulations,
codes, licences, permits, orders, directives, guidelines, decisions rendered by any
governmental Authority relating to the protection of the environment, natural resources,
public health, occupational health and safety or the manufacture, processing, distribution,
use, treatment, storage, disposal, packaging, transport, handling, containment, clean-up or
other remediation or corrective action of any Hazardous Substance, and all authorizations
issued pursuant to such Applicable Laws, agreements or statutory requirements.
(ee) "Environmental Objection" has the meaning ascribed to it in Section 5.02.
(fl) "Environmental Reports" means the reports relating to the environmental condition of
the Lands as identified in Schedule C.
(gg) "Execution Date" means the date on which this Agreement has been executed and
delivered by all parties hereto.
(hh) "Hazardous Substance" includes, but is not limited to any hazardous or toxic chemical,
waste, by-product, pollutant, contaminant, compound, product or substance, including
without limitation, any Contaminant, asbestos, polychlorinated biphenyls, petroleum and
its derivatives, by-products or other hydrocarbons and any other liquid, solid or gaseous
material the exposure to, or manufacture, possession, presence, use, generation, storage,
transportation, treatment, release, disposal, abatement, cleanup, removal, remediation or
handling of, which is prohibited, controlled or regulated by any and is defined in or
pursuant to any Environmental Law.
(ii) "HMQ" has the meaning ascribed to it in the recitals above.
(ii) "HMQ Acquisition Costs" has the meaning ascribed to it in Section 17 .02.
(kk) "HMQ Purchase Agreement" has the meaning ascribed to it in the recitals above.
(!I) "HST" has the meaning ascribed to it in Section 4.01.
(mm) "Inspection Period" means that period of time which ends on the first Business Day that
is 45 days following the Execution Date.
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(nn) "Lands" means the land(s) described in Schedule A-1 and outlined in red on the sketch
plan attached hereto as Schedule A -2.
( oo) "Land Transfer Tax Affidavit" has the meaning ascribed to it in Section 17.01.
(pp) "Land Use Regulations" means collectively, any land use policies, regulations, by-laws,
or plans of any Authority that apply to the use of the Property, including the existing
Official Plans, zoning by-laws and zoning orders.
(qq) "Lease(s)" means all leases or licences of any portion of the Lands in force at Closing.
( rr) "Master Parks Agreement" means the Master Parks Agreement dated May l, 2017
entered into by the City, and the owners of other development land in the Seaton
Community for the purpose of establishing arrangements pertaining to the satisfaction of
the park dedication requirements for the Seaton Community.
(ss) "Municipality" means the municipality (or municipalities) where the Property is located.
(tt) "Offer Date" means the date the offer herein is submitted to the Vendor by the Purchaser.
(uu) "OILC" means Ontario Infrastructure and Lands Corporation.
(vv) "Open Data" means data that is required to be released to the public pursuant to the Open
Data Directive.
(ww) "Open Data Directive" means the Management Board of Cabinet's Open Data Directive,
updated on April 29, 2016, as same may be amended from time to time.
(xx) "Participation Agreement" means the participation agreement to be entered into
between the Vendor and HMQ at Closing, which participation agreement shall be
substantively in the form attached to the HMQ Purchase Agreement.
(yy) "Permitted Encumbrances" means, collectively, the encumbrances listed in Schedule B
and any encumbrances created under the terms of this Agreement.
(zz) "Phase 1 RFEA" has the meaning ascribed to such term in the Seaton CSA.
(aaa) "Phase 1 RFEA Lands" has the meaning ascribed to such term in the Phase 1 RFEA.
(bbb) "Pickering FIA" means the Financial Impacts Agreement dated November 26, 2015
entered into by the City, and the owners of other development land in the Seaton
Community for the purpose of confirming arrangements pertaining to the financing and
construction of certain infrastructure and other related matters affecting the development
of lands in Seaton.
(ccc) "Private Landowner" has the meaning ascribed to such term in the Seaton CSA.
(ddd) "Private Landowner Equivalency Payment" has the meaning ascribed to it in Section
16.06.
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(eee) "Property" means, collectively, all of the right, title and interest of the Vendor in and to
the Lands and the Buildings.
(fff) "Property Documents" means the documents in OILC's current possession and related to
the Property, as set out in Schedule C, and shall include, but shall not be limited to:
(A) executed copies of any assignable service contracts, operating agreements
and management agreements;
(B) copies of assignable guarantees and warranties of materials, workmanship,
labour and materials relating to the Property that are still in effect;
(C) copies of the Environmental Reports, heritage reports, archaeological
reports or any other report relating to the physical, geotechnical or
environmental condition of the Property;
(D) copies of all Lease(s);
(E) copies of all Permitted Encumbrances which are not registered against title
to the Property; and
(F) any plan of survey of the boundaries of the Property.
(ggg) "Provincial Successor" has the meaning ascribed to such term in the Seaton CSA.
(hhh) "Purchase Price" means the total amount determined by Section 2.02 that shall be paid by
the Purchaser to the Vendor for the Property, exclusive of HST and subject to the
Adjustments.
(iii) "Purchaser's Reports" has the meaning ascribed to it in Section 5.06.
Gjj) "Region" means the Regional Municipality of Durham.
(kkk) "Regional Infrastructure" has the meaning ascribed to it in the Seaton CSA.
(lll) "ROFO and Repurchase Agreement" means the ROFO and Repurchase Agreement
attached hereto as Schedule G to be entered into between the Vendor and the Purchaser on
Closing.
(mmm) "SCS" means SCS Consulting Group Ltd., being the professional land development
engineering consultants acting on behalf of the trustees under the Development
Agreements.
(nnn) "Seaton Community" means the developable land as determined by the Central Pickering
Development Plan, as may be further refined , and as determined by the Seaton CSA.
(ooo) "Seaton CSA" means the Amended and Restated Cost Sharing Agreement dated
November 26, 2015 between the Vendor and other owners of development land in the
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Seaton Community to provide for the sharing of the costs of development in the Seaton
Community.
(ppp) "Seaton-Durham CSA" means an agreement dated November 26 , 2015 between the
Vendor, the Private Landowners and the Durham Owners to provide for the recovery of
certain costs of construction of Regional Infrastructure to be incurred by the Vendor and
the Private Landowners pursuant to the Phase I RFEA from the Durham Owners.
( qqq) "Seaton Trustee" means the trustee as provided for in the Seaton CSA , as it is from time
to time. As of the Execution Date, the Seaton Trustee is North Pickering Community
Management Inc.
(rrr) "Servicing Costs" has the meaning ascribed to it in Section 16.07.
(sss) "Subsequent Phase" means development of land in the Seaton Community , the
development of which is not covered by the Phase I RFEA, and for which no allocation of
sewer or water capacity has currently be granted by any Authority.
(ttt) "Transaction" means, collectively, the purchase and sale of the Property provided for in
this Agreement and all other matters contemplated in this Agreement.
(uuu) "Vendor Parties" has the meaning ascribed to in Section 5.08.
SECTION2
AGREEMENT OF PURCHASE AND SALE
2 .01 Subject to the closing of the HMQ Purchase Agreement and transfer of the fee simple interest in
the Property to the Vendor pursuant thereto, the Vendor agrees to sell, transfer and assign to the
Purchaser all of the right, title and interest of the Vendor in the Property and the Purchaser agrees
to purchase, acquire and assume the Property from the Vendor for the Purchase Price which shall
be paid by the Purchaser to the Vendor for the Property, exclusive of HST and subject to the
Adjustments on the Closing Date.
2 .02 The Purchase Price shall be calculated by multiplying the area of the Lands in acres by a per acre
price of $255,000 per acre for the Lands. The area of the Lands is 38.4353 acres, which would
result in a Purchase Price of $9,801,002.00.
SECTION3
DEPOSIT/ PAYMENT OF PURCHASE PRICE
3.01 The Purchaser will pay to Vendor's solicitor in trust (or as otherwise directed by the Vendor), by
wire transfer:
(a) Upon the submission of this offer to purchase, a sum equal to five percent (5%) of the
Purchase Price, as a deposit to be held in accordance with the terms of this Agreement ;
(b) Within two Business Days following the Execution Date a further sum equal to five
percent (5%) of the Purchase Price, as a further deposit to be held in accordance with
the terms of this Agreement; and
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(c) Within two Business Days following the satisfaction or waiver of the Purchaser's
conditions in Section 6.04(a), a further sum equal to ten percent (10%) o f the P urchase
Price, as a further deposit to be held in accordance with the terms of this Agreement,
(collectively, the "Deposit").
(d) If the Vendor directs that the deposit be payable to OILC or OILC's solicitors, then
reference to "Vendor's solicitors" in this Section 3.01 shall be deemed to be "OILC or
OILC's solicitors, as applicable."
(e) The Deposit shall be invested by the Vendor's solicitors in an interest-bearing trust account
with one of the six largest Schedule I Canadian chartered banks pending completion of the
Transaction or earlier termination of this Agreement. The Deposit shall be credited against
the Purchase Price on Closing and any and all interest earned thereon shall accrue to the
benefit of and, subject to Sections (d) and 5.03, be paid to the Purchaser forthwith
following the Closing Date or earlier termination of this Agreement. The Vendor's
solicitors are hereby authorized and directed to pay the Deposit ( or such portion of it as has
been delivered by the Purchaser), together with all interest accrued thereon, in the manner
contemplated by the provisions of this Section 3.02.
(t) The Deposit shall be held by the Vendor's solicitors in trust in an interest-hearing account,
interest bearing investment certificate or term deposit, or similar investment, with a
Canadian Schedule I chartered bank pending Closing or earlier tennination of this
Agreement. It is expressly agreed that for the purposes of section 57 of the Law Society
Act (Ontario), interest accrued on the Deposit shall be disposed ofin accordance with this
Agreement, which constitutes an "arrangement in writing" for the purposes of paragraph
57(5)(a) of such Act, and shall not be held in trust for the Law Foundation of Ontario.
(g) In holding and dealing with the Deposit pursuant to this Agreement, the Vendor's solicitors
shall not be bound in any way by any agreement other than this Agreement, and the
Vendor's solicitors shall not be considered to assume any duty, liability or responsibility
other than to hold the Deposit in accordance with the provisions of this Agreement and to
pay the Deposit, and any interest earned thereon, to the Person becoming entitled thereto
in accordance with the terms of this Agreement, except in the event of a dispute among the
parties to this Agreement as to entitlement to the Deposit. In the case of such dispute, the
Vendor's solicitors may, in their discretion, hold the Deposit pending resolution of said
dispute, or may, in their discretion, pay the Deposit into court, whereupon the Vendor's
solicitors shall have no further obligations relating to the De posit.
(h) N othing in this Agreement shall make the Vendor's solicitors responsible or liable in any
matter for the sufficiency, correctness, genuineness or validity of any notice, certificate,
authorization, direction and/or any other document to be delivered pursuant to this
Agreement and accordingly, the Vendor's solicitors shall be at liberty to accept any notices,
certificates, authoriz.ations or directions of each of the parties or any other documents
provided by such parties to the Vendor's solicitors as to any statements of facts as
conclusive evidence of the truth of such statements and the Vendor's solicitors shall be in
no way bound to call for further evidence or be responsible for any loss that may be
occasioned by its failing to do so. For greater certainty, the Vendor's solicitors shall be
entitled to assume or rely upon the authority of the person or entity making or signing such
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notice, certificate, authorization, direction and/or other document, the genuineness of the
signatures thereto and the accuracy of the matters set out therein, with the right, but without
the duty or obligation on the part of the Vendor 's solicitors, to inquire beyond the face of
any such notice, certificate, authorization , direction and/or other document received by it
and the Vendor's solicitors shall be relieved of any liability or responsibility for any loss
or damage which may arise as the result of the acceptance by the Vendor's solicitors of
any such notice, certificate, authorization, direction and/or other document received by it
in good faith. The Vendor's solicitors shall retain the right not to act and shall not be held
liable for refusing to act unless it has, in its sole judgement, received clear documentation
which complies with the terms of this Agreement. Such documentation must not require
the exercise of any discretion or independent judgment. The Vendor's solicitors shall
retain the right not to act and shall not be liable for refusing to act if, due to a lack of
information or for any other reason whatsoever, the Vendor's solicitors, in its sole
judgment, determines that such act might cause it to be in non-compliance with any
applicable anti-money laundering or anti-terrorist legislation , regulation or
guideline. Further, should the Vendor's solicitors, in its sole judgment, determine at any
time that its acting under this Agreement has resulted in its being in non-compliance with
any applicable anti-money laundering or anti -terrorist legislation, regulation or guideline,
then it shall have the right to pay the Deposit into court without further liability on fifteen
(15) days' written notice to the parties, provided (i) that the Vendor's solicitors written
notice shall describe the circumstances of such non-compliance; and (ii) that if such
circumstances are rectified to the Vendor's solicitors satisfaction within such fifteen (15)
day period, then such resignation shall not be effective.
(i) The Vendor's solicitors shall not be liable for any action taken or omitted by it, in good
faith and in the exercise of its reasonable judgment in connection with the Deposit.
G) The parties to this Agreement expressly acknowledge to the Vendor's solicitors that the
Vendor 's solicitors may rely upon the provisions of this Section 3.02 notwithstanding that
the Vendor 's solicitors are not a Party to this Agreement.
3.02 If the Transaction is not completed in accordance with this Agreement for any reason other than
the default of the Purchaser hereunder, the Deposit shall , subject to Section 5.03, be returned to the
Purchaser with accrued interest, if any , forthwith after termination of this Agreement. If the
Transaction is not completed in accordance with this Agreement due to a specific default by the
Purchaser, then the Deposit, together with all interest accrued thereon, shall be forfeited to the
Vendor as liquidated damages and not as a penalty.
3.03 If the Transaction is completed, the Deposit shall be credited against the Purchase Price due on
Closing and all interest accrued thereon shall be paid to the Purchaser or as it may direct forthwith
following Closing.
3.04 On Closing the Purchase Price shall be paid and satisfied as follows:
(a) by release of the Deposit to the Vendor; and
(b) the balance of the Purchase Price, as adjusted pursuant to this Agreement shall be paid on
the Closing Date by the Purchaser to, at the election of the Vendor, either (i) the Vendor in
trust; or (ii) HMQ by way of a written direction from the Vendor, which direction shall be
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provided not less than two (2) Business Days prior to Closing. The balance of the Purchase
Price shall be payable by way of wire transfer, such payment being deemed to have been
made when the recipient's financial institution confirms receipt of such wire transfer.
3.05 In addition to the Purchase Price, at Closing the Purchaser shall pay , or cause to be paid, all
Develupmenl Agreement Payments to the Vendor or as the Vendor may direct, to the appropriate
Authority, or to the appropriate trustee under a Development Agreement.
3.06 The Purchaser acknowledges that at Closing it will be required to provide, or cause to be provided,
Development Agreement Security to the appropriate Authority pursuant to one or more of the
Development Agreements.
3.07 The Transaction shall be completed on the Closing Date at the offices of the Vendor's solicitors.
SECTION 4
HARMONIZED SALES TAX
4.01 The Purchase Price does not include the Harmonized Sales Tax ("HST ") payable by the Purchaser
in respect of the purchase of the Property pursuant to the Excise Tax Act, R.S.C. 1985, c. E.15
(Canada) (the "Act"). Subject to Section 4 .02, the Purchaser agrees to pay to the Vendor , on the
Closing Date, as a condition of completion of this Transaction by wire transfer, certified cheque or
bank draft , all HST payable as a result of this Transaction in accordance with the Act.
4.02 Notwithstanding Section 4.01 above , the Vendor shall not collect HST from the Purchaser in this
Transaction if, on Clo sin g, the Purchas er (or the applicable beneficial owner, if th e Purcha<;er is
acting as nominee or bar e trustee) is registered under the Act and in that event, the Purchaser shall:
(a) file returns and remit such HST to the Receiver General for Canada when and to the extent
required by the Act ; and
(b) provide to the Vendor , on the Closing Date , a certificate confirming that the Purchaser ( or
the applicable beneficial owner, if the Purchaser is acting as nominee or bare trustee) is
reg ister ed under th e Act for the purposes of coll ec ting and remitting HST , and confirming
its HST registration number under the Act , together with an ind emnity in favour of the
Vendor for any and all HST, fines, penalties, actions, costs, losses , claims , damages or
expenses and/or interest which may become payable by , or assessed against , the Vendor as
a result of the Vendor 's failure to collect HST from the Purchaser on th e Closing Date ,
such certificate and ind emnity to be in a form satisfactory to the Vendor's solicitor, acting
reasonably ,
failing which the Purchaser shall pay to the Vendor on Closing the HST payable by the Purchaser
with respect to this Transaction and the Vendor shall remit such HST to the appropriate Authority
in accordance with the Act.
4.03 The Purchaser 's obligations under this Section 4 shall survive and not merge on Closing.
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SECTION S
"AS IS WHERE IS",
PURCHASER'S INSPECTION PER IOD, AND ENVIRONMENTAL INDEMNITY
5.01 The Purchaser acknowledges and agrees that:
(a) in entering into this Agreement, the Purchaser has relied and will continue to rely entirely
and solely upon its own inspections and investigations with respect to the Property ,
including, without limitation, the physical and environmental condition of the Property and
a review of any documentation respecting the Property, and the Purchaser acknowledges it
is not relying on any information furnished by the Vendor or any other person on behalf
of, or at the direction of, the Vendor in connection therewith;
(b) the Purchaser is purchasing and shall accept, assume and take title to the Property and any
improvements thereon in an "As Is, Where Is" condition. The term "As Is, Where Is"
means in its condition or state on the Offer Date, without any agreement, representation or
warranty of any kind whatsoever, either express or implied on the part of the Vendor, as to
the condition of the soil, the subsoil, the ground and surface water or any other
environmental matters, the condition of the Lands, suitability for development, physical
characteristics, profitability, the condition of the Buildings, or any other matter respecting
the Property whatsoever, including without limitation, compliance with Environmental
Law, the existence of any Hazardous Substance or Contaminant, the use to which the
Property may be put and its zoning, the development potential of the Property or the ability
of the Purchaser to obtain approvals with respect to the Purchaser's intended development
of the Property, or as to the accuracy, currency or completeness of any information or
documentation supplied to the Purchaser in connection with the Property; and
(c) the Vendor shall have no obligations or responsibility to the Purchaser after Closing with
respect to any matter relating to the Property or the condition thereof. The provisions of
this Section 5.01 shall survive and not merge on Closing.
Without limiting the foregoing, the Purchaser accepts, assumes and takes title to the Property
subject to the land uses currently permitted on the Property by the applicable Land Us e Regulations
and the Purchaser shall not make and is not authorized by the Vendor to make, prior to completion
of this Transaction, any applications to the Municipality or any governmental Authority for changes
or variances to the uses currently permitted on the Property , including without limitation changes
or variances to official plans and/or zoning by-laws applicable to the Property.
5.02 During the period of time commencing on the Execution Date and expiring on the expiration of the
Inspection Period, the Purchaser may carry out whatever investigations it considers necessary to
satisfy itself with respect to the condition of the soil , the subsoil, the ground and surface water or
any other environmental matter relating to the Property, including, without limitation, compliance
with Environmental Law, the existence of any Hazardous Substance or Contaminant.
If as a result of such investigations the Purchaser has or acquires evidence within the Inspection
Period that there exists a condition of non -compliance with Environmental Law or the presence of
a Hazardous Substance or Contaminant on, in, at , under, emanating from or onto the Property that
would be in excess of the guidelines for any of the permitted uses under the current zoning by -law
affecting the Property, the risk or presence of which the Purchaser is not prepared to assume, then
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the Purchaser shall, by written notice, provide such evidence to the Vendor within the Inspection
Period by way of a report of a recognized and qualified environmental consultant who shall specify
in detail the nature of the non-compliance, Hazardous Substance or Contaminant and quantify the
remediation cost (collectively, an "Environmental Objection"). Upon receipt of an Environmental
Objection, the Vendor may, at its option and in its sole discretion:
(a) undertake, as the Purchaser's sole and exclusive remedy, to take such actions,
complete such work and/or implement such measures, in the Vendor's sole
discretion as to means and methods, as may be necessary to correct the matter of
non-compliance prior to the Closing Date or as soon as reasonably possible after
the Closing Date if compliance prior to Closing is not, in the Vendor's opinion,
reasonably possible, to the satisfaction of the Purchaser, acting reasonably;
provided that if the Vendor selects the option in this paragraph (a), the Vendor and
the Purchaser shall enter into an agreement on Closing providing for correction of
the non-compliance post-Closing as set out above, and for access to the Property
by the Vendor, which agreement shall be in form satisfactory to the parties and
their solicitors, each acting reasonably;
(b) credit the Purchaser, as the Purchaser's sole and exclusive remedy, the quantified
cost of correcting the matter of non-compliance as an adjustment to the Purchase
Price in an amount to be acceptable to the Purchaser, acting reasonably, in which
event the Purchaser shall, on Closing, expressly assume the obligation and
undertake to correct the matter of non-compliance as soon as possible after the
Closing Date and shall indemnify and save harmless the Vendor from and against
any and all claims, demands, costs, damages, expenses and liabilities whatsoever
arising from the Purchaser's failure to remediate the Hazardous Substance,
Contaminant and/or matter of non-compliance;
(c) terminate this Agreement in which event the Deposit shall, subject to Section 5.03,
be returned to the Purchaser with accrued interest, and without further liability to
the Vendor; or
(d) refuse to do either (a), (b), or (c) above in which event the Purchaser shall have the
option of either: (i) completing the Transaction without adjustment to the Purchase
Price; or (ii) terminating this Agreement in which event the Deposit shall, subject
to Section 5.03, be returned to the Purchaser with accrued interest, and without
further liability to the Vendor.
The Vendor shall have thirteen (13) Business Days from receipt of the Environmental Objection to
make its election under (a), (b), (c) or (d) above by notice in writing to the Purchaser and in the
event the Vendor fails to make an election within said thirteen (13) Business Day period, the
Vendor will be deemed to have elected option ( d) above. The Purchaser shall have seven (7) days
from the date of the Vendor's election or deemed election under (d) above to elect, by notice in
writing to the Vendor, to terminate or complete as per paragraph (d) above and in the event the
Purchaser fails to make an election within said seven (7) day period the Purchaser shall be deemed
to have elected to complete the Transaction without adjustment to the Purchase Price.
5.03 During the Inspection Period, the Vendor will permit the Purchaser together with its employees ,
agents or consultants access to the Property, at reasonable times and upon a minimum of three (3)
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Business Days' prior written notice to the Vendor, to carry out, at the Purchaser's sole expense and
risk, such investigations, tests and inspections as the Purchaser deems necessary, provided that the
Purchaser takes all reasonable care in the conduct of such investigations, tests and inspections. All
tests, investigations and inspections conducted by the Purchaser or its representatives shall be
commenced and completed prior to the expiration of the Inspection Period and shall be carried out
as expeditiously as possible and at times and in such manner so as to not interfere with any tenants,
occupants or licensees on the Property or the operation and maintenance of the Property. The
Purchaser covenants and agrees to promptly repair or pay the cost of repair of any damage
occasioned during or resulting from such investigations, tests and inspections of the Property
conducted by the Purchaser or its representatives and to return the Property to substantially the
same condition it was in prior to such investigations, tests and inspections. The Vendor assumes no
responsibility for and the Purchaser shall indemnify and save harmless the Vendor from and against
any and all claims, demands, costs, damages, expenses and liabilities whatsoever arising from the
Purchaser's and/or its agents' or consultants' presence on the Property or the Purchaser's and/or its
agents' or consultants' activities on or in connection with the Property. The Vendor shall be entitled
to deduct from the Deposit paid by the Purchaser hereunder the amount of any losses, costs, claims,
third party actions, damages and expenses which the Vendor may suffer as a result of a breach of
this Section 5.03. The obligations in this Section 5.03 shall survive termination of this Agreement
for a period of two (2) years and shall not merge on Closing.
5.04 Intentionally Deleted.
5.05 The Vendor agrees to provide to the Purchaser, the Property Documents listed in Schedule C and
the Development Agreements within five (5) days of the date of receipt by the Vendor of the same
from HMQ. The Purchaser acknowledges and agrees that: (i) the Property Documents are being
provided to the Purchaser for informational purposes only and the Vendor makes no representations
or warranties whatsoever with respect to the content, completeness or accuracy of the Property
Documents, or the environmental or any other condition of the Property; (ii) the Vendor shall not
be liable to the Purchaser, its agents, employees or lending institution in any way for any error,
omission or inaccuracy contained in any Property Document; and (iii) as of the Closing Date, the
Purchaser shall become solely liable for all conditions and Hazardous Substances and/or
Contaminants existing at the Property, whether known or unknown by the Purchaser, and whether
or not such conditions or Hazardous Substances and/or Contaminants are disclosed in the Property
Documents or have been discovered by Purchaser in the course of its due diligence or other
investigations or inspections of the Property. The Purchaser shall be entitled to review the Property
Documents and the Development Agreements during the Inspection Period and the Vendor agrees
to use commercially reasonable efforts to cause SCS to deliver to the Purchaser any financial
statements, projections and budgets with respect to the Development Agreements requested by the
Purchaser, acting reasonably, (the "Other Information").
5.06 The Purchaser covenants and agrees that the Property Documents provided by the Vendor and any
and all third party reports, findings, recommendations, opinions and information resulting from the
Purchaser's due diligence ("Purchaser's Reports") and the information contained therein shall be
held in accordance with the confidentiality provisions set out in section 23. If this Agreement is
terminated for any reason, the Purchaser will promptly return to the Vendor all Purchaser's Reports
and Property Documents without keeping copies. The Purchaser shall deliver to the Vendor
forthwith following receipt, copies of any and all Purchaser's Reports the Purchaser commissions
or obtains during the course of its investigations.
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5.07 In the absence of: (i) Purchaser delivering an Environmental Objection; and (ii) this Agreement
terminating as a result of the condition set forth in Section 6.04(a) not having been waived or
satisfied, the Purchaser shall be conclusively deemed to accept the Property in its As ls, Where ls
condition, having waived all requisitions concerning any matters relating to the Property, save for
any valid requisition on title made prior to the expiry of the Inspection Period, and the Purchaser
shall accept full responsibility for all conditions related to the Property, and the Purchaser shall
comply, at its sole cost, with all orders relating to the condition of the Property issued by any
competent government Authority, court or administrative tribunal, including any order issued
against the Vendor including without limitation, any non-compliance with Environmental Law or
relating to the existence of any Hazardous Substance or Contaminant.
5.08 As an inducement to, and as further consideration for, the Vendor agreeing to sell the Property to
the Purchaser upon the terms and conditions set forth in this Agreement, the Purchaser covenants
and agrees that, effective as of the Closing Date, the Purchaser shall forever release and covenant
not to sue the Vendor and its affiliates, subsidiaries, related legal entities, employees, directors,
officers, appointees and agents (each individually, a "Vendor Party" and collectively, the "Vendor
Parties") with respect to anything arising out of the environmental or any other condition of the
Property as of the Closing Date or the presence of Hazardous Substances or Contaminants in, on,
under, or emanating from or onto the Property as of the Closing Date, regardless of whether such
environmental conditions or the presence of Hazardous Substances or Contaminants is known or
unknown by the Purchaser and regardless of whether such condition is set forth in the Property
Documents, the Purchaser's Reports or any other report, document or information discovered
during the course of the Purchaser's due diligence or otherwise. The foregoing release and covenant
not to sue shall apply to all claims at law or in equity, including, but not limited to, claims or causes
of action for personal htj ury or death, property damage, statutory claims under Environmental Laws
and claims for contribution. Nothing herein shall prevent the Purchaser from suing any third party
who is not a Vendor Party, for any such condition, provided that the Purchaser hereby indemnifies
and saves harmless the Vendor Parties for any claim made against a Vendor Party by any such third
party resulting from such law suit. The foregoing shall in no way prevent the Purchaser from
requiring compliance by the Vendor of any obi igation to remediate which arises pursuant to Section
5.02(a).
5,09 From and after the Closing Date, the Purchaser shall be responsible for, and hereby agrees to
indemnify, defend and save harmless the Vendor Parties from , any and all costs (including legal,
consultant and witness costs and fees), claims, demands, actions, prosecutions, administrative
hearings, fines, losses, damages, penalties, judgments, awards (including awards of costs) and
liabilities (including sums paid in settlement of claims), that may arise as a result of the condition
of the Property, the presence of I Jazardous Substances or Contaminants in, on or under the Lands,
the Buildings or any structure or paved surface, or in any environmental medium (including, but
not limited to, the soil, groundwater, or soil vapour on or under, or emanating from the Property),
any order issued by any Authority in connection with the condition of the Property, or any loss,
damage, or injury caused either directly or indirectly as a result of the condition of the Property
including, without limitation, non-compliance with Environmental Law or the existence of any
Hazardous Substance or Contaminant. Without limiting the generality of the foregoing, this
indemnification shall specifically cover costs incurred, from and after the Closing Date, in
connection with any claim for personal injury and/or death, property damage, investigation of site
conditions and/or any clean-up , remedial, removal, monitoring or restoration work required by any
federal , provincial, or local government agency or political subdivision because of the presence of
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Hazardous Substances, in, on or under the Lands, the Buildings or any environmental medium ,
structure or paved surface or emanating therefrom.
5 .10 The parties agree to execute and exchange at the time of Closing such further documentation as
either party reasonably requests , including, but not limited to, an agreement whereby the Purchaser
shall reaffirm the release, covenant not to sue and indemnifications regarding the condition of the
Property and environmental matters set forth in this Section 5 in the form attached hereto as 0.
Notwithstanding the foregoing, the release, covenant not to sue and indemnifications set forth in
this Section 5 shall become effective and enforceable automatically upon the registration of the
Transfer/Deed of Land in respect of the Property in favour of the Purchaser, and Purchaser shall be
bound by them, regardless of whether or not Purchaser executes any separate instrument at the time
of Closing.
5.11 Unless otherwise expressly set out herein, this Section 5 shall not merge but shall survive the
Closing Date and shall be a continuing obligation of the Purchaser.
SECTION6
CLOSING CONDITIONS
6 .01 The obligation of the Vendor to complete the Transaction is conditional upon fulfillment of each
of the following conditions on or before the Closing Date or any earlier date or time specified in
this Agreement:
(a) HMQ and the Vendor, shall have negotiated and entered into the HMQ Purchase
Agreement and shall have satisfied or waived all of the conditions and requirements set out
in the HMQ Purchase Agreement, as applicable therein, and the transactions provided for
therein shall have been completed in accordance with the terms and conditions thereof,
including that the Vendor shall have acquired the Property from HMQ , all of which shall
have occurred prior to June 15, 2022 (the "Outside Date") and prior to Closing;
(b) all of the terms, covenants and conditions of this Agreement to be complied with or
performed by the Purchaser shall have been complied with or performed in all material
respects at the times contemplated in this Agreement;
( c) the representations and warranties of the Purchaser set forth in this Agreement shall be true
and accurate in all material respects as if made as of the Closing;
(d) the Purchaser shall have executed all documents required to assume the obligations of the
Vendor pursuant to the Development Agreements , including all required Assignment and
Assumption Agreements; and
( e) all documents and deliveries required to be executed and/or delivered by the Purchaser
shall have been executed and delivered to the Vendor in accordance to this Agreement.
6.02 The conditions set forth in Section 6.01 are for the sole benefit of the Vendor and may be waived
in whole or in part by the Vendor, or by its solicitors on its behalf, in the sole and absolute discretion
of the Vendor by written notice to the Purchaser. The conditions are conditions precedent to the
obligation of the Vendor to complete the herein Transaction on the Closing Date.
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6.03 If a condition set forth in Section 6.01 is not fulfilled within the applicable time period, if any, and
the Vendor fails to notify the Purchaser or the Purchaser's solicitors that such condition has been
waived or the time period for compliance has been extended within the applicable time period
allowed, if any (save and except for any condition which is to be satisfied on the Closing in
connection with which it is hereby agreed that upon successful completion of the Transaction, such
condition shall be deemed to have been satisfied), at the Vendor's sole option, this Agreement shall
be null and void, notwithstanding any intermediate act or negotiations, and (i) in the event the
Agreement is terminated as a result of the non-fulfilment of the condition set forth in Section
6.0l(a), neither the Vendor nor the Purchaser shall, subject to Section 5.03, be liable to the other
for any loss, costs or damages, and the Deposit shall, subject to Section 5.03, be returned to the
Purchaser with interest and without deduction, and (ii) in the event the Agreement is terminated as
a result of the non-fulfilment ofany of the conditions set forth in Section 6.0l(b), 6.0l(c) or 6.0l(d),
the Deposit shall be forfeited to the Vendor as liquidated damages and not as a penalty.
6.04 The obligation of the Purchaser to complete the Transaction is conditional upon fulfillment of each
of the following conditions on or before the Closing Date or any earlier date or time specified in
this Agreement:
(a) on or before the expiration of the Inspection Period, the Purchaser shall have satisfied itself
in its sole and unfettered discretion, with the physical condition of the Lands, the
environmental condition of the Lands, the zoning of the Lands, the Participation
Agreement, the Development Agreements, the Property Documents, the Other
Information, the Lease(s), and all of its other due diligence tests, evaluations, inspections
and investigations, including, but not limited to, the conditions set out in Section 5.05;
(b) HMQ and the Vendor, shall have negotiated and entered into the HMQ Purchase
Agreement and shall have satisfied or waived all of the conditions and requirements set out
in the HMQ Purchase Agreement, as applicable therein, and the transactions provided for
therein shall have been completed in accordance with the terms and conditions thereof,
including that the Vendor shall have acquired the Property from HMQ, all of which shall
have occurred prior to the Outside Date and prior to Closing;
(c) all of the terms, covenants and conditions of this Agreement to be complied with or
performed by the Vendor shall have been complied with or performed in all material
respects at the times contemplated in this Agreement;
( d) the representations and warranties of the Vendor set forth in this Agreement shall be true
and accurate in all material respects as if made as of the Closing; and
(e) all documents and deliveries required to be executed and/or delivered by the Vendor shall
have been executed and delivered to the Purchaser in accordance to this Agreement.
6.05 The conditions set forth in Section 6.04 is for the sole benefit of the Purchaser and may be waived
in whole or in part by the Purchaser, or by its solicitors on its behalf, in the sole and absolute
discretion of the Purchaser by written notice to the Vendor. The conditions are conditions precedent
to the obligation of the Purchaser to complete the herein Transaction on the Closing Date.
6.06 If a condition set forth in Section 6.04 is not fulfilled within the applicable time period, if any ,
and/or the Purchaser fails to notify the Vendor or the Vendor's solicitors that such condition has
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been waived or the time period for compliance has been extended within the applicable time period
allowed, if any (save and except for any condition which is to be satisfied on the Closing in
connection with which it is hereby agreed that upon successful completion of the Transaction, such
condition shall be deemed to have been satisfied), at the Purchaser's sole option, this Agreement
shall be null and void, notwithstanding any intermediate act or negotiations, the Deposit shall,
subject to Section 5.03, be returned to the Purchaser with interest and without deduction.
SECTION7
EXTENSION OF CLOSING
7.01 Subject always to the restriction set out in Section 10.06 herein, any extension of the "Closing
Date" pursuant to (and as defined in) the HMQ Purchase Agreement shall automatically effect a
similar extension to the Closing Date pursuant to this Agreement, it being the intention that the
Closing Date hereunder shall always be the same day as the "Closing Date" pursuant to (and as
defined in) the HMQ Purchase Agreement and the Closing hereunder shall always be immediately
following the "Closing" under (and as defined in) the HMQ Purchase Agreement. The Vendor
agrees to give the Purchaser prompt notice of any exercise by HMQ its option under the HMQ
Purchase Agreement to extend the closing date thereunder in accordance with the terms and
conditions therein.
SECTIONS
INTENTIONALLY DELETED
SECTION9
RISK
9.01 Until completion of this Agreement on the Closing Date, the Property shall be and remain at the
risk of the Vendor, except as otherwise provided in Section 5. The Purchaser acknowledges that
the Vendor, in respect of damage to the Property , is self-insured. In the event of damage to the
Property on or before the Closing Date ( other than damage occasioned during or resulting from
the Purchaser's and/or its agents, consultants or representatives entries and/or activities on or to the
Property, in which event Section 5.03 shall govern) (the "Pre-Closing Damage"), the Vendor may
elect (i) to forthwith repair the Property to the same state and condition as it was in at the Offer
Date in which event the Purchaser will complete the Transaction without an abatement in the
Purchase Price; or (ii) to reduce the Purchase Price by an amount equal to the cost required to
complete the repair as estimated by an independent qualified architect or engineer jointly retained
by the Vendor and the Purchaser, acting reasonably and at arm's length in which event the
Purchaser will complete the Transaction and accept a price reduction equal to such cost, or (iii)
unless the Purchaser agrees to accept title to the Property notwithstanding the election of the Vendor
not to remediate or compensate to terminate this Agreement in which case the Deposit shall, subject
to Section 5.03, be immediately returned to the Purchaser, with interest and without deduction, and
neither party shall, subject to Section 5.03, have any further rights or obligations hereunder.
9.02 From and including the Closing Date, the Property shall be entirely at the risk of the Purchaser and
the Purchaser shall accept and assume any and all responsibilities and liabilities arising out of or in
any way connected with the Property whether they arose before , on or after the Closing Date and,
without being limited by the foregoing , any state , nature , quality or condition in , on, under or near
the Property existing as of the Closing Date, whenever and however arising, whether known or
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unknown and whether environmental or otherwise, and whether such responsibili ties and liabili t ies
are imposed by law, equity or any governing Authority.
SECTION 10
VENDOR'S WARRANTIES, REPRESENTATIONS AND COVENANTS
10.01 The Vendor represents and warrants to the Purchaser that the execution, delivery and performance
by the Vendor of this Agreement, and each agreement to be executed and delivered pursuant hereto
at Closing, to which the Vendor is a party are within the Vendor's legal power and jurisdiction and
have been duly authorized and approved by all necessary action on the part of the Vendor.
10.02 The Ve ndor represents and warrants to the Purchaser that this Agreement has been, and each
agreement to be executed and delivered by the Ve ndor pursuant to this Agreement, will be duly
and validly executed and delivered by the Vendor, and this Agreement constitutes, and each
agreement to be executed and delivered pursuant hereto at Closing, when so executed and delivered
will constitute, the legal, valid and binding obligation of the Vendor, e nforceable against the
Vendor in accordance with their respective terms.
10.03 The Vendor represents and warrants to the Purchaser that the Vendor is not a non-resident of
Canada within the meaning and intended purpose of Section 116 of the Income Tax Act, R.S.C.
1985, c.1 (stJ• Supp.).
10.04 The Vendor represents and warrants that there are no agreements, options, contracts or
commitments to sell, transfer or otherwise dispose of the Property or which would restrict the
ability of the Vendor to transfer the Property to the Purchaser.
10.05 The Vendor represents and warrants that on or prior to the Execution Date, the Vendor and HMQ
have entered into the HMQ Purchase Agreement, a true and complete copy of which has been
provided to the Purchaser, and which HMQ Purchase Agreement is in full force and has not bee n
amended.
10.06 The Vendor covenants that it shall not agree to any amendment of the HMQ Purchase Agreement
without the prior written permission of the Purchaser, which consent may be arbitrarily withheld if
the Purchaser determines, acting reasonably, that such amendment would have an adverse effect
on the rights of the Purchaser under this Agreement, but otherwise such consent will not be
unreasonably withhe ld or unduly delay ed . Notwithstanding the foregoing, the Vendor covenants
that it shall not agree to any amendment or extension to the "Closing Date" pursuant to (and as
defined in) the HMQ Purchase Agreement that is not expressly provided for therein without the
prior written pennission of the Purchaser, which consent may be arbitrarily withheld if the
amendment or e xt ension of the "Closing Date" is afte r the Outside Date.
1 o. 07 Any information provided by the Vendor or its agents, including the Property Documents, and any
comments made by any Vendor Party are for the a s sistance of the Purchaser in allowing it to make
its own inquiries. The V e ndor makes no representations or warrantie s as to, and takes no
responsibility for, the accuracy or completeness of the Property Documents or any other
information it has provided to the Purchaser.
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SECTION 11
PURCHASER'S WARRANTIES, REPRESENTATIONS AND COVENANTS
11.01 The Purchaser represents and warrants to the Vendor that the Purchaser does not have a conflict of
interest with the Vendor or any Vendor Party.
11.02 The Purchaser represents and warrants to the Vendor that the execution, delivery and performance
by the Purchaser of this Agreement, and each agreement to be executed and delivered pursuant
hereto at Closing, to which the Purchaser is a party are within the Purchaser's legal power and
jurisdiction and, will have been duly authorized and approved by all necessary action on the part
of the Purchaser.
11.03 The Purchaser represents and warrants to the Vendor that this Agreement has been, and each
agreement to be executed and delivered by the Purchaser pursuant to this Agreement, will be duly
and validly executed and delivered by the Purchaser, and this Agreement constitutes, and each
agreement to be executed and delivered pursuant hereto at Closing, when so executed and delivered
will constitute, the legal, valid and binding obligation of the Purchaser, enforceable against the
Purchaser in accordance with their respective terms.
11.04 The Vendor shall deliver and the Purchaser shall accept possession of the Property on the Closing
Date in an As Is Where Is condition, subject to: (i) the Lease(s); (ii) the Development Agreements;
and (iii) the Permitted Encumbrances.
11.05 As of the Closing Date, the Purchaser shall assume and be responsible as owner for the management
and administration of the Property and the Vendor shall have no further responsibility whatsoever
therefor.
11.06 Without limiting the generality of the foregoing, the Purchaser shall comply with the terms of the
Permitted Encumbrances, any agreement entered into by the Vendor with any Authority relating to
the Property, all other agreements relating to public utilities and municipal services, the Land Use
Regulations, all relevant municipal by-laws and all registered restrictions. The Purchaser further
agrees and acknowledges that it shall be bound by any contractual obligations which the Vendor
may have entered into concerning the Property prior to the Closing Date, to the extent that such
contractual obligations have been disclosed to the Purchaser as part of the Property Documents or
otherwise, or are within the actual knowledge of the Purchaser.
SECTION 12
INTENTIONALLY DELETED
SECTION 13
INTENTIONALLY DELETED
SECTION 14
TITLE
14.01 The Purchaser shall have until the expiry of the Inspection Period to investigate title to the Property
at the Purchaser's expense. The Purchaser agrees not to call for the production of any title deed,
abstract, survey or other evidence of title to the Lands except such as are in the possession of the
Vendor.
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14.02 On the Closing Date, the Purchaser shall accept title to the Prope1ty in an As ls Where ls condition
subject to the following:
(a) the Land Use Regulations;
(b) the Development Agreements and notices thereof;
(c) the Lease(s);
(d) all Community Use Land obligation pursuant to the Seaton CSA;
( e) the Participation Agreement;
(f) the ROFO and Repurchase Agreement; and
(g) the Permitted Encumbrances.
The Purchaser agrees to satisfy itself with respect to compliance with all such agreements,
easements, restrictions or covenants, encumbrances and regulations referred to herein and agrees
that the Vendor shall not be required to provide any evidence of compliance with same.
14.03 If, prior to the expiry of the Inspection Period, the Purchaser furnishes the Vendor in writing with
a valid objection to title which the Vendor is unwilling or unable to remove, remedy and satisfy
and which the Purchaser will not waive, this Agreement shall be terminated notwithstanding any
intermediate acts or negotiations with respect to such objection, the Deposit shall, subject to Section
5.03, be returned to the Purchaser with interest and without deduction and the Vendor shall not be
liable for any costs or damages suffered by the Purchaser arising out of such termination or
otherwise out of this Agreement and parties shall have no further obligations or liabilities
hereunder.
14.04 The Vendor hereby consents to the relevant Municipality releasing to the Purchaser any information
in its records in connection with the Property and the Vendor agrees to execute and deliver such
necessary authorizations as the Purchaser may reasonably require in this regard but any such
authorization shall specifically prohibit the right of or a request for an inspection of the Property
by the Municipality or any other Authority.
SECTION 15
NO ASSIGNMENT ETC.
15.01 The Purchaser shall not assign or register this Agreement, or any assignment of this Agreement, or
any part of either, or register a caution in relation thereto, or direct title to the Property , without, in
each instance, obtaining the prior written consent of the Vendor, which consent may be arbitrarily
and unreasonably withheld. Notwithstanding the foregoing, the Purchaser may, upon prior written
notice to the Vendor, assign this Agreement to an Affiliate of the Purchaser but the Purchaser shall
not be relieved of any of its liabilities or obligations hereunder in the event of any such assignment
to an Affiliate.
15.02 If the Vendor consents to an assignment of this Agreement to a third party (the "Assignee"), the
Purchaser shall cause the Assignee and the Purchaser, to covenant in writing in favour of the
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Vendor to be jointly and severally bound by and to jointly and severally perform their respective
obligations of this Agreement. The Purchaser shall not be released from its liabilities and
obligations hereunder in the event of an assignment to an Assignee.
15.03 In the event of any assignment of this Agreement to an Assignee, such Assignee shall provide a
similar representation, warranty and Statutory Declaration as required of the Purchaser in
Section I 1.01.
SECTION 16
DEVELOPMENT AGREEMENTS
16.01 The Purchaser agrees that at Closing it shall, as part of its acquisition of the Property, assume the
obligations of the Vendor regarding the Property pursuant to the Development Agreements, and it
covenants to make all payments required by such Development Agreements and provide any
Development Agreement Security required pursuant to any such Development Agreement, whether
such security is to be lodged with an Authority or otherwise, upon the execution of any applicable
Assignment and Assumption Agreement with the intent that the Purchaser shall be treated equally
with the other Private Landowners, except as explicitly provided in the Development Agreements.
Furthermore, the Purchaser acknowledges and agrees the assumed liabilities under the
Development Agreements (including, but not limited to, all amounts required to be paid by the
Purchaser on Closing pursuant to the terms of the Development Agreements) may be material in
nature and the Purchaser acknowledges that it has been provided with sufficient opportunity to fully
assess the nature and quantum of such assumed liabilities.
16.02 The Purchaser acknowledges that the Development Agreements may have been registered against
title to the Property and further acknowledges that the development of the Property is subject to the
Development Agreements. Furthermore and for greater certainty, the Purchaser acknowledges that
from and after Closing it shall be responsible for its share of the costs of all services and/or public
infrastructure relating to the Lands, including, but not limited to, its proportionate share ofany front
funded costs which may have been paid by any third parties prior to Closing with respect to such
services and/or public infrastructure.
16.03 The Purchaser acknowledges and agrees that the Vendor has made payments and incurred expenses
which are subject to recovery by the Vendor through the issuance of Development Charge Credits
pursuant to the terms and conditions of the Phase I RFEA. The Purchaser agrees that at Closing,
and as a condition of Closing, that it shall reimburse the Vendor for all costs that the Vendor has
incurred which would be recoverable by the Vendor in the form of Development Charge Credits to
be issued pursuant to the Phase I RFEA in respect of the Lands. The Purchaser acknowledges and
agrees that the Seaton Trustee shall determine the amount Development Charge Credits entitlement
earned and attributable to the Lands based on the Developable Area Share of the Lands in the
Seaton Community, whether or not the Lands are within the Phase 1 RFEA Lands, and shall take
into account indexing as provided for in the Phase I RFEA. The payment from the Purchaser to the
Vendor pursuant to this section shall be referred to herein as the "DC Credit Recovery Payment".
16.04 The Purchaser acknowledges that the Pickering FIA creates obligations with regard to the funding
of certain infrastructure in Seaton under the jurisdiction of the City. The Purchaser covenants and
agrees that it will abide by the terms and conditions of the Pickering FIA , and will execute any
Assignment and Assumption Agreement as reasonably required by the Vendor or the City.
Furthermore, the Purchaser acknowledges that the infrastructure projects to be funded pursuant to
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the Pickering FIA are Cost Shared Services under the Seaton CSA, and the costs of which are to be
cost shared pursuant to the tenns of the Seaton CSA. Additionally, the Purchaser acknowledges
that the Vendor has front-funded certain design, construction, inspection and contract
administration of some of the following works (the "City Front-funded Works") which benefit
the Lands:
(a) civil servicing, including water main, sanitary sewer, storm sewer, related connections,
local road works;
(b) electrical and utilities, including street lighting and utility relocation;
(c) landscaping, including tree clearing, boulevard works, tree planting, topsoil and sod;
( d) land acquisition and easement costs; and
( e) permits and approvals.
The Purchaser acknowledges and agrees that at Closing, and as a condition of Closing, that it shall
reimburse the Vendor, as an adjustment to the Purchase Price, and/or shall post such letter of credit
security as is required, as determined by Sabourin Kimble & Associates Ltd., for all costs that the
Vendor has incurred with respect to the Purchaser's bencfitting share of the City Front-Funded
Works, as well as an estimate of any City Front-Funded Works to be completed following Closing,
which reimbursement shall be determined by Sabourin Kimble & Associates Ltd., acting
reasonably, based on information, allocations, methodologies and amounts disclosed to the
Purchase r prior to the satisfaction or waiver of the Purchaser's conditions in Section 6.04(a);
provided that no such adjustment or security shall be in duplication of any payment or security the
Purchaser is required to make or give as a part of the Development Agreement Payments.
16.05 The Purchaser acknowledges that the Lands include Phase 1 RFEA Lands and, therefore, prior to
the issuance of a building permit with respect to the development of such lands, unless otherwise
provided for in a front ending agreement relating to Subsequent Phase development, the Purchaser
will have to pay, in addition to any Attribution Development Charges payable with respect to the
development of the Lands, the Attribution Prepayment applicable to the Property. The Phase 1
RFEA provides that Development Charge Credits earned by virtue of the payment of the
Attribution Prepayment are not able to be utilized to satisfy the Attributions Development Charges
payable upon the issuance of building pennits for lands that are Phase 1 RFEA Lands, and further
such Development Charge Credits will be administered by the Seaton Trustee.
16.06 The Purchaser acknowledges that on Closing the Purchaser will be a Provincial Successor (as such
term is defined in the Seaton CSA). Furthennore, by virtue of being a Provincial Successor the
Purchaser acknowledges and agrees that at Closing it will have to make a paym~nl to the Seaton
Trustee in an amount to be determined by the Seaton Trustee pursuant to the tenns of the Seaton
CSA, which will bring the Purchaser into a position in which the Purchaser will have funded the
costs of Regional Infrastructure pursuant to the Phase 1 RF EA on the same basis as the other Private
Landowners within the Seaton Community, this payment to be referred to herein as the "Private
Landowner Equivalency Payment".
16.07 The Purchaser acknowledges and agrees that at Closing, it wi ll make a payment to the Vendor in
an amount equal to the portion of the costs incurred by the Vendor for Cost Shared Services
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applicable to the Lands up to the Closing Date as confirmed by the Seaton Trustee, unless otherwise
provided for herein, whether on a Developable Area Share or Drainage Area Share or otherwise as
applicable (referred to herein as "Servicing Costs").
16.08 The Purchaser acknowledges that the Lands include Community Use Lands and that such
Community Use Lands are to be transferred to an Authority or the Seaton Trustee pursuant to the
terms of the Seaton CSA. The Purchaser acknowledges and agrees that it will abide by the terms
of the Seaton CSA with regard to such Community Use Lands which requires that they be conveyed
to an Authority or the Seaton Trustee, and further that the Assignment and Assumption Agreement
with regard to the Seaton CSA will specifically provide for such transfer of the Community Use
Lands.
16.09 The Seaton-Durham CSA provides for the recovery of certain costs of the construction of Regional
Infrastructure that relate to the over-sizing of such services for which Development Charge Credits
are not available. The Purchaser acknowledges that the Vendor has not made and is not making any
representations or warranties that any such construction costs will be recovered from the Durham
Owners.
SECTION 17
PREPARATION OF TRANSFER/DEED DOCUMENTS AND FEES/COSTS
17.01 The Transfer/Deed of the Lands will be prepared by the Vendor, except for the Affidavit of
Residence and Value of the Consideration ("Land Transfer Tax Affidavit"), which will be
prepared by the Purchaser.
17.02 The Purchaser shall pay its own legal costs and registration costs. The Purchaser shall be
responsible for the payment of any applicable Land Transfer Tax and registration fees and any other
taxes and fees which may be payable in connection with the registration of the transfer/deed of the
Property. Furthermore and in addition to the foregoing amounts, the Purchaser agrees that it shall
pay to the Vendor on Closing, the following amounts:
(a) an amount equal to the amount of Land Transfer Tax, registration fees and any other taxes
and fees payable in connection with the Vendor's purchase of the Lands from HMQ
pursuant to the terms of the HMQ Purchase Agreement, which are not recoverable by the
Vendor from the appropriate taxing authority;
(b) all legal and other third-party expenses incurred or payable by the Vendor in connection
with (i) the Transaction; and (ii) the acquisition of the Lands from HMQ pursuant to the
terms of the HMQ Purchase Agreement, including, but not limited to, costs associated with
any environmental site investigations performed by or on behalf of the Vendor with respect
to the Lands, if any;
(c) all marketing costs for which the Vendor is responsible or for which the Vendor has been
required to pay in order to acquire the Lands pursuant to the terms of the HMQ Purchase
Agreement,
collectively, the "HMQ Acquisition Costs".
The HMQ Acquisition Costs shall be set out in the statement of Adjustments.
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SECTION 18
TENDER
18.01 Any tender of money or documents pursuant to this Agreement may be made on the Vendor or the
Purchaser or their respective solicitors. Unless expressly set out to the contrary herein, money must
be tendered in Canadian funds by electronic wire. The Vendor and the Purchaser acknowledge and
agree that insofar as the tender of any documents to be electronically registered is concerned, the
tender of same will be deemed to be effective and proper when the solicitor for the party tendering
has completed all steps required by Teraview in order to complete this Transaction that can be
performed or undertaken by the tendering party's solicitor without the cooperation or participation
of the other party's solicitor, and specifically when the tendering party's solicitor has electronically
"signed" the Transfer/Deed of Land and any other closing document, if any, to be electronically
registered for completeness and granted access to the other party's solicitors to same, but without
the necessity for the tendering party's solicitor actually releasing such documents to the other
party's solicitor for registration.
SECTION 19
ADJUSTMENTS
19.01 Adjustments between the Vendor and the Purchaser shall be made on the Closing Date for taxes,
local improvement rates, utility costs, rents, legal costs, HMQ Acquisition Costs and other matters
or items which are ordinarily the subject of adjustment for the purchase and sale of a property
similar to the Property in the Province of Ontario. Such Adjustments shall be made on the basis
that, except as may be otherwise expressly provided for in this Agreement:
(a) the Vendor shall be responsible for all expenses and liabilities and entitled to all income
from the Property up to the Closing Date; and
(b) the Purchaser shall be responsible for all expenses and liabilities and entitled to aH income
from the Property from and including the Closing Date.
19.02 Adjustments that cannot be detennined on the Closing Date shall be determined by the parties as
soon after the Closing Date as is reasonably possible. Any amounts payable by one party to the
other, as determined by the parties, acting reasonably, shall be paid within thirty (30) days of the
request for such payment. On the Closing Date, the Vendor and the Purchaser shall exchange
undertakings to re-adjust the foregoing items, if necessary.
19.03 All Adjm,tment!'. to be made under Section 19.01 shall be completed on or before the date which is
no later than six (6) months from the Closing Date and no re-adjustment may be made by either
party thereafter.
SECTION20
ELECTRONIC REGISTRATION
20.01 Where the Propetty is in an area where electronic registration is mandatory and the Transaction
will be completed by electronic registration pursuant to Part III of the Land Registration Reform
Act, R.S.O. 1990, c. L.4, and the Electronic Registration Act, S.O. 1991, c.44, and any amendments
thereto, the Vendor and Purchaser acknowledge and agree that the exchange of closing funds, non-
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registrable documents and other closing deliverables provided for herein and the release thereof to
the Vendor and Purchaser will:
(a) not occur at the same time as the registration of the transfer/deed (and any other documents
intended to be registered in connection with the completion of this Transaction); and
(b) be subject to conditions whereby the lawyer( s) receiving any of the closing deliverables
will be required to hold same in escrow and not release same except in accordance with the
terms of a document registration agreement between the said lawyers, the form of which is
as recommended from time to time by the Law Society of Upper Canada (the "Document
Registration Agreement") and attached hereto as Schedule E.
SECTION21
CLOSING DELIVERABLES
21.01 Subject to the provisions of this Agreement, the Vendor covenants that it shall execute or cause to
be executed and shall deliver or cause to be delivered to the Purchaser or the Purchaser's solicitors
on or before the Closing Date, each of the following:
(a) possession of the Property in an As Is Where Is condition, subject to the Lease(s), and
subject to the rights of others as set out in the Permitted Encumbrances;
(b) an Assignment and Assumption Agreement for the Lease(s);
( c) an Assignment and Assumption Agreement for each of the Development Agreements;
( d) an Assignment and Assumption Agreement for the Permitted Encumbrances, as applicable;
(e) an Assignment and Assumption Agreement for the Participation Agreement;
(f) notice to the tenant(s) or licensee(s) pursuant to the Lease(s) informing them of the sale of
the Lands and directing them to make future rent payments to the Purchaser;
(g) an executed Transfer/Deed of Land in registrable form duly executed by the Vendor in
favour of the Purchaser (save for any Land Transfer Tax Affidavit);
(h) an undertaking to re-adjust the statement of Adjustments, if necessary, upon written
demand;
(i) a direction regarding the payment of funds;
(i) statement of Adjustments;
(k) Document Registration Agreement as set out in Schedule E;
(I) the ROFO and Repurchase Agreement in form attached hereto as Schedule G ;
(m) a statement of the Development Agreement Payment payable to the Vendor, including
the DC Credit Recovery Payment, the Private Landowner Equivalency Payment, and
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Servicing Costs and wire transfer instructions for the payment thereof, which statement
shall be in the form attached hereto as Schedule I; and
(n) such other deeds, conveyances and other documents as the Purchaser or its solicitors may
reasonably require in order to implement the intent of this Agreement.
21.02 Subject to the provisions of this Agreement, the Purchaser covenants that it shall execute or cause
to be executed and shall deliver or cause to be delivered to the Vendor or the Vendor's Solicitors
on or before the Closing Date:
(a) confirmation of wire transfer for the balance of the Purchase Price and Adjustments due on
the Closing Date;
(b) confirmation of wire transfer for any Development Agreement Payment payable to the
Vendor, including the DC Credit Recovery Payment, the Private Landowner Equivalcncy
Payment, and Servicing Costs;
( c) a certified cheque, bank draft or a confirmation of wire transfer for any Development
Agreement Payment payable to the applicable trustee under a Development Agreement;
( d) confirmation of delivery of Development Agreement Security to any applicable authority
or trustee under a Development Agreement, if applicable;
(e) an undertaking to re-adjust the statement of Adjustments, if necessary, upon written
demand;
(f) HST Declaration and Indemnity, as contemplated in Section 4, if applicable;
(g) Document Registration Agreement in the form attached as Schedule E;
(h) an Assignment and Assumption Agreement for the Lease(s);
(i) an Assignment and Assumption Agreement for each of the Development Agreements;
G) an Assignment and Assumption Agreement for the Permitted Encumbrances, as applicable;
(k) an Assignment and Assumption Agreement for the Participation Agreement;
(I) the ROFO and Repurchase Agreement in the form attached hereto as Schedule G;
(m) the Purchaser's Indemnity and Covenant Not to Sue in the form attached hereto as O; and
(n) such other deeds, conveyances , resolutions and other documents as the Vendor or its
solicitors may reasonably require in order to implement the intent of this Agreement.
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SECTION 22
NOTICE
22.01 Any notice or other communication required or permitted to be given hereunder ("Notice") must
be in writing and must be given by email or by delivery. Any other means of notice will not be
effective for the purposes of this Agreement. If a Notice is given in accordance with the foregoing
sentence after 5:00 p.m. (Toronto time) on a Business Day, it shall be deemed to have been given
on the next Business Day thereafter and if it is given in accordance with the foregoing sentence on
or prior to 5:00 p.m. (Toronto time) on a Business Day, it shall be deemed to have been received
on such day. Notice of change of address will also be governed by this Section. Notices and other
communications will be addressed as follows:
ifto the Purchaser at:
3200 Highway 7
Vaughan, ON
L4K 5Z5
Attention: Legal Department
Email: j amato @ smartcentres.com
with a copy to the Purchaser's solicitors at:
Davies Ward Phillips & Vineberg LLP
155 Wellington Street West
Toronto, ON
M5V 317
Attention:
Email:
Steven Martin
smartin@dwpv.com
if to the Vendor at:
The Corporation of the City of Pickering
One The Esplanade
Pickering
Ontario, L 1 V 6K7
Attention:
Email:
Paul Bigioni, Director, Corporate Services and City Solicitor
12b igioni @ ickerin .ca
with a copy to the Vendor's solicitors at:
Tor#: 10245 I 96 . 9
Torys LLP
79 Wellington Street West
Suite 3000
Box 270, TD Centre
Toronto
Ontario, MSK 1 N2
38997-2007 34906505.4
Attention:
Email:
-28 -
Andy Gibbons/ Nooreen Bhanji
agibbons@tory s.co m / nbhanji @tory s .com
or to such other address as a party designates by Notice from time to time in accordance with the
foregoing.
SECTION23
CONFIDENTIALITY
23.01 The Vendor and Purchaser agree to take all necessary precautions to maintain the confidentiality
of the terms and conditions contained herein. The parties acknowledge that this Agreement and any
information or documents that are provided hereunder may be released pursuant to the applicable
provisions of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F .31 , as
amended and the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990,
c. M.56, as amended and Open Data may be released pursuant to the Open Data Directive. This
acknowledgment shall not be construed as a waiver of any right to object to the release of this
Agreement or of any information or documents.
23.02 The Purchaser agrees to ensure that the Purchaser, its officers, employees, agents and sub-
contractors shall, subject to Section 23.01 , maintain the confidentiality and security ofall materials
and information which is the property of the Vendor and in the possession or under the control of
the Purchaser pursuant to this Agreement. The Purchaser agrees to ensure that the Purchaser, its
officers, employees, agents and sub-contractors shall not directly or indirectly disclose or use, either
during or following the term of this Agreement, except where required by law, any material or
information belonging to the Vendor pursuant to this Agreement, without first obtaining the prior
written consent of the Vendor for such disclosure or use and in the event of termination of this
Agreement, the Purchaser will be responsible for returning all such documentation and information
to the Vendor without making copies.
SECTION24
GENERAL
24.01 From and after the Execution Date, the Purchaser shall indemnify and save harmless the Vendor
Parties from , any and all costs (including legal , consultant and witness costs and fees), claims,
demands, actions, prosecutions, administrative hearings, fines, losses, damages, penalties,
judgments, awards (including awards of costs) and liabilities (including sums paid in settlement of
claims), including, but not limited to, any such costs, claims , demands, actions, prosecutions,
administrative hearings , fines, losses, damages, penalties, judgements, awards and liabilities that
may result from a breach by the Vendor under the HMQ Purchase Agreement, that may arise as a
result of any acts or omissions on the part of the Purchaser or any breach by the Purchaser of the
terms of this Agreement. For greater certainty, the Purchaser acknowledges and agrees that the
Vendor has agreed to enter into the HMQ Purchase Agreement, solely for the purposes of enabling
the sale of the Lands to the Purchaser as set out in this Agreement.
24.02 Time shall in all respects be of the essence of this Agreement, provided that the time for doing or
completing any matter provided for in this Agreement may be extended or abridged by an
agreement in writing, signed by the Vendor and the Purchaser or by an agreement between their
respective solicitors who are hereby expressly authorized in this regard. If anything in this
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Agreement is to be done on a day which is not a Business Day, the same shall be done on the next
succeeding Business Day.
24.03 This Agreement shall be binding upon, and enure to the benefit of, the Vendor and the Purchaser
and their respective successors and permitted assigns. The Vendor and the Purchaser acknowledge
and agree that the representations, covenants, agreements, rights and obligations of the Vendor and
the Purchaser under this Agreement shall not merge on the completion of this Transaction, but shall
survive completion and remain in full force and effect and be binding upon the parties, save and
except as may be otherwise expressly provided for in this Agreement.
24.04 Whenever the singular is used in this Agreement, it shall mean and include the plural and whenever
the masculine gender is used in this Agreement it shall mean and include the feminine gender if the
context so requires.
24.05 This Agreement constitutes the entire agreement between the parties and there is no representation,
warranty, collateral agreement or condition affecting this Agreement or the Property, except as
specifically set forth in this Agreement. This Agreement may not be modified or amended except
by an instrument in writing signed by the parties hereto.
24.06 This Agreement and the rights and obligations of the Vendor and the Purchaser shall be determined
in accordance with the laws of the Province of Ontario.
24.07 Wherever this Agreement makes reference to a requirement for the consent or approval of the
Vendor, such consent must be prior written consent and may be arbitrarily and unreasonably
withheld in the sole and absolute discretion of the Vendor.
24.08 No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver
of any other provision (whether or not similar) nor shall any waiver constitute a continuing waiver
unless otherwise expressed or provided.
24.09 If any provision of this Agreement or part thereof or the application thereof to any person or
circumstance, to any extent, shall be determined to be invalid or unenforceable, the remainder of
this Agreement or the application of such provisions or part thereof to any person, party or
circumstance other than those to which it is held invalid or unenforceable shall not be affected
thereby. Each covenant, obligation and agreement in this Agreement shall be separately valid and
enforceable to the fullest extent permitted by law.
24.10 Each of the parties hereto shall from time to time hereafter and upon any reasonable request of the
other and in such form as may be satisfactory to both parties hereunder, execute and deliver, make
or cause to be made all such further acts, deeds, assurances and things as may be required or
necessary to more effectually implement and carry out the true intent and meaning of this
Agreement.
SECTION25
IRREVOCABLE PERIOD
25.01 Signature of this offer (this "Offer") by the Purchaser to purchase the Property on and subject to
the terms of this Agreement and the submission thereof to the Vendor constitutes an offer under
seal , which is irrevocable for thirty (30) days from the date it is submitted to the Vendor (the
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"Acceptance Date") and open for acceptance by the Vendor at any time on or before the
Acceptance Date. This Offer, if (and only if) accepted by the Vendor on or before the Acceptance
Date, shall then constitute a binding contract of purchase and sale of the Property on and subject to
the terms of this Agreement. If this Offer is not accepted by the Vendor on or before the Acceptance
Date, this Offer shall be null and void and of no further effect. This Offer may be made and accepted
in accordance with the foregoing by electronic transmission, including electronic signature
provided that the original hard copy, with original signatures is received by both parties within five
(5) days of the electronic acceptance. The Purchaser, in submitting this Offer, acknowledges that
there has been no promise or representation or assurance given to the Purchaser that any of the
terms and conditions in this Offer are or will be acceptable to the Vendor.
[ no further text on this page]
Tor#: 10245196.9
38997-2007 J4906.'i0H
IN WITNESS WHEREOF the parties hereto have executed this Agreement as evidenced
by their properly authorized officers in that behalf as of the day and year first above written.
OFFERED BY the Purchaser this 11 th day of March, 2022.
SBB INDUSTRIAL (SEATON) LIMITED
PARTNERSHIP, by its gene ral partner,
SBB INDUSTRIAL (SEATON) GP INC.
Name.
Title:
I/We have authority to bind the
Partnership
ACCEPTED BY the Vendorthis ___ day of ______ ....,2022,
't891.ll~V9WJ06505.4
THE CORPORATION OF THE C ITY OF
PICKERING
By:
By:
---------------
Name:
Title:
---------------
Name:
Title:
I/We have authority to bind the
Corporation
SCHEDULE A-1
LEGAL DESCRIPTION OF LANDS
Legal Description
Firstly
Part ofLot 24, Concession S Pickering, designated as Part 10 on Plan 40R-30896, City of Pickering,
being part of PlN 26402-0167(LT)
Secondly
Part of Lot 24, Concession 5 Pickering, designated as Part 31 on Plan 40R-29467, SA VE AND EXCEPT
Parts 5 and 6 on Plan 40R-25010, City of Pickering, being part of PIN 26402-0167(LT)
Thirdly
Part of the Road Allowance between Lots 24 and 25, Concession S Pickering, designated as Part 3 on
Plan 40R-29474, City of Pickering, being part of PIN 26402-0096(LT)
Fourthly
Part of Lots 25 and 26, Concession 5 Pickering, designated as Part 6 on Plan 40R-29467, City of
Pickering, being part of PIN 26386-0lS0(L T)
Fifthly
Part of Lots 25 and 26, Concession 5 Pickering, designated as Part 9 on Plan 40R-30896, City of
Pickering, being part of PIN 26386-0180(L T)
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SCHEDULE A-2
LANDS
The site plan depicting the Property below is for reference only. In the event of any inconsistency or conflict between this
site plan and the legal description of the Property in Schedule A-1, the legal description in Schedule A-1 shall prevail.
:· ~ ... ~o Seaton Lands -Bundle 6 Transaction 2
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SCHEDULED
PERMITTED ENCUMBRANCES
(a) General Encumbrances:
Tori/: 10245196.9
(i) the Leases, if any, (for greater certainty including expired leases registered against
title to the Lands) and any notices of such leases registered on title to the Lands,
including all easements, rights of way, restrictions, restrictive covenants,
servitudes and other similar rights in land contained in the Leases, which exist as
of the Closing Date and any leasehold mortgages or security interests relating to
tenants or the tenants' interest in respect thereof and which do not encumber the
interest of the landlord thereunder;
(ii) liens for real property taxes (which term includes charges, rates and assessments)
or charges for electricity, power, gas, water and other services and utilities in
connection with the Property or for construction in connection with the Property
for amounts the payment of which is not yet due or delinquent;
(iii) any easements, rights of way, restrictions, building schemes, licences, restrictive
covenants and servitudes, rights of access or use, airport zoning regulations and
other similar rights in land (including, without limitation, rights of way and
servitudes for sewers, drains, gas and water mains, electrical power, telephone and
cable conduits, poles, wires or cables) granted to, reserved or taken by any person
which do not, in the aggregate, materially and adversely impair the use or
marketability of any of the Property for the purposes for which it is presently held,
and any rights reserved or vested in any Authority or public or private utility by
the terms of any lease, licence, franchise , grant, agreement or permit, subdivision,
development, servicing, encroachment, site plan, parking or other similar
agreement with any Authority or public or private utility;
(iv) title defects or irregularities which do not, in the aggregate, materially and
adversely impair the use of the Property for the purpose for which it is presently
held;
(v) any cost sharing, common use, reciprocal or other similar agreements relating to
the use and/or operation of the Property and/or adjoining properties provided the
same are complied with in all material respects and all security given by the parties
thereto to each other to secure their respective obligations thereunder;
(vi) any subsisting reservations, limitations, provisos, conditions or exceptions,
including royalties, contained in the original grant of the Property from the Crown;
(vii) any rights of expropriation, access or use, or any other right confeJTed or reserved
by or in any statute of Canada or the Province of Ontario;
(viii) the provisions of all applicable laws including by-laws, regulations, ordinances,
land use contracts, development agreements and similar instruments relating
(without limitation) to development, use and zoning;
(ix) encroachments by any improvements on the Property over adjoining lands and
easements or rights of way and/or any improvements on adjoining lands
38997-2007 34906505.4
encroaching on the Property which do not materially and adversely affect the
present use of the Property;
(x) all registered and unregistered agreements, easements , rights, covenants and/or
restrictions in favour of municipalities, publicly or privately regulated utilities or
adjoining owners, or that otherwise run with the Lands; and
(xi) any encroachments that are shown on existing surveys or as may be revealed by
an up-to-date survey.
(b) Specific Encumbrances:
All instruments registered on title to the Property as of the Closing Date provided that the Vendor
is not in material breach thereof and, where applicable, consent to transfer to Purchaser, if
required, has been obtained, including but not limited to:
1. Notice of the Phase 1 RFEA;
2. Notice of the Pickering FIA;
3. Notice of the Seaton CSA;
4. Notice of the Seaton-Durham CSA;
5. Notice of the Participation Agreement; and
6. Notice of the ROFO and Repurchase Agreement.
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SCHEDULEC
PROPERTY DOCUMENTS
Lease dated as of November 25, 1981 between HMQ, as landlord, and Kenneth Saunders and Joy
Saunders, the tenants, as amended by a lease amending agreement dated as of February 2, 1998 .
Lease dated January 29, 2003 originally between the Vendor, as landlord, and TM Mobile Inc., together
with all amendments, renewal and assignments in respect thereof.
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SCHEDULED
INTENTIONALLY DELETED
SCHEDULEE
DOCUMENT REGISTRATION AGREEMENT
BETWEEN:
<>
(hereinafter referred to as the "Vendor's Solicitor")
AND:
<>
(hereinafter referred to as the "Purchaser's Solicitor")
RE: The Corporation of the City of Pickering (the "Vendor") sale to<> (the "Pu rchaser") of the
property legally described as<>, City of<>, being the whole of PIN <>(LT) (the "Property")
pursuant to an Agreement of Purcha'le and Sale between the Purchaser, as purchaser, und the
Vendor , as vendor, dated<> and accepted<> (the "Purchase Agreement"), scheduled to be
completed on<> (the "Closing Date")
Holding
Deliveries
In Escrow
Advising of
Concerns with
Deliveries
FOR GOOD AND VALUABLE CONSIDERATION (the receipt and
sufficiency of which is hereby expressly acknowledged), the parties hereto hereby
undertake and agree as follows:
1. The Vendor's Solicitor and the Purchaser 's Solicitor shall hold all funds,
keys and closing documentation exchanged between them (the "Requisite
Deliveries") in escrow , and shall not release or otherwise deal with same except in
accordance with the terms of this Agreement. Both the Vendor 's Solicitor and the
Purchaser's Solicitor have been authorized by their respective clients to enter into
this Agreement. Once the Requisite Deliveries can be released in accordance with
the terms of this Agreement , any monies representing payout funds for mortgages
to be discharged shall be forwarded promptly to the appropriate mortgage lender.1
2. Each of the parties hereto shall notify the other as soon as reasonably
possible following their respective receipt of the Requisite Deliveries (as applicable)
of any (fofoct(s) with respect to same.
1So!icitors should continue lo refer to the Law Society of Upper Canada practice guidelines relating to recommended proc edures to follow
for the discha rge of mortgages.
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Selecting
Solicitor
Responsible for
Registration
Responsibility of
Non-Registering
Solicitor
Responsibility of
Registering
Solicitor
Release of
Requisite
Deliveries by
Non-Registering
Solicitor
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38997-2007 34906505.4
3. The Purchaser's Solicitor shall be responsible for the registration of the
Electronic Documents (as hereinafter defined) unless the box set out below
indicating that the Vendor's Solicitor will be responsible for such registration has
been checked. For the purposes of this Agreement, the solicitor responsible for
such registration shall be referred to as the "Registering Solicitor" and the other
solicitor shall be referred to as the "Non-Registering Solicitor":
Vendor's Solicitor will be registering the Electronic D Documents
4. The Non-Registering Solicitor shall, upon his/her receipt and approval of
the Requisite Deliveries (as applicable), electronically release for registration the
Electronic Documents and shall thereafter be entitled to release the Requisite
Deliveries from escrow forthwith following the earlier of:
a) the registration of the Electronic Documents;
b) the closing time specified in the Purchase Agreement unless a
specific time has been inserted as follows ~---a.m./p.m. on
the Closing Date] (the "Release Deadline"), and provided that
notice under paragraph 8 below has not been received; or
c) receipt of notification from the Registering Solicitor of the
registration of the Electronic Documents.
If the Purchase Agreement does not specify a closing time and a Release Deadline
has not been specifically inserted the Release Deadline shall be 6.00 p.m. on the
Closing Date.
5. The Registering Solicitor shall, subject to paragraph 7 below, on the
Closing Date, following his/her receipt and approval of the Requisite Deliveries
(as applicable), register the documents listed in Schedule A annexed hereto
(referred to in this agreement as the "Electronic Documents") in the stated order
of priority therein set out, as soon as reasonably possible once same have been
released for registration by the Non-Registering Solicitor, and immediately
thereafter notify the Non-Registering Solicitor of the registration particulars
thereof by telephone or telefax (or other method as agreed between the parties).
6 Upon registration of the Electronic Documents and notification of the
Non-Registering solicitor in accordance with paragraph 5 above, the Non-
Registering Solicitor shall be entitled to forthwith release the Requisite Deliveries
from escrow.
Returning
Deliveries where
Non-registration
Counterparts
&Gender
Purchase
Agreement
Prevails if
Conflict or
Inconsistency
Telefax.ing
Deliveries
& Providing
Originals if
Requested
7. Any of the parties hereto may notify the other party that he/she does not
wish to proceed with the registration 2 of the Electronic Documents, and provided
that such notice is received by the other party before the release of the Requisite
Deliveries pursuant to this Agreement and before the registration of the Electronic
Documenls, then each ofthc parties hereto shall forthwith return to the other party
their respective Requisite Deliveries.
8. This agreement may be signed in counterparts, and shall be read with all
changes of gender and/or number as may be required by the context.
9 . Nothing contained in this agreement shall be read or construed as altering
the respective rights and obligations of the Purchaser and the Vendor as more
particularly set out in the Purchase Agreement, and in the event of any conflict or
inconsistency between the provisions of this agreement and the Purchase
Agreement , then the latter shall prevail.
10. This agreement (or any counterpart hereof), and any of the closing
documents hereinbefore contemplated, may be exchanged by telefax or similar
system reproducing the original , provided that all such documents have been
properly executed by the appropriate parties. The party transmitting any such
document(s) shall also provide the original executed version(s) of same to the
recipient within 2 business days after the Closing Date, unless the recipient has
indicated that he/she does not require such original copies.
Dated this ___ day of<>, 20 _ Dated this __ day of<>, 20 _
Name/Finn Name of Purchaser 's Soli~itor Name/Firm Name of Vendor's Solicitor
<> <>
(Signature) (Signature)
Note: This version of the Document Registration Agreement was adopted by the Joint LSUC-CBAO
Committee on Electro11ic Registration of Title Documents on March 29, 2004 and posted to the web site
on April 8, 2004.
2 For the purpo se of this Agreement, the term "registration" shall mean the issuance of registration number( s) in respect of the Electronic
Documents by the appropriate Land Registry Office .
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Schedule "A"
1. Transfer from <> to <>.
2. Notice of ROFO and Repurchase Agreement in favour of The Corporation of the City of
Pickering.
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SCHEDULEF
INTENTIONALLY DELETED
BETWEEN:
RECITALS:
SCHEDULEG
ROFO AND REPURCHASE AGREEMENT
THE CORPORATION OF THE CITY OF PICKERING
-and-
SBB INDUSTRIAL (SEATON) LIMITED PARTNERSHIP,
by its general partner, SBB INDUSTRIAL (SEATON) GP INC.
A. The Corporation of the City of Pickering (the "City") has entered into an agreement of purchase
and sale dated as of ______ (the "HMQ Purchase Agreement") with Her Majesty The
Queen in Right of Ontario, as represented by The Minister of Infrastructure, (the "Province") for
the purpose of acquiring the fee simple to the property (the "Property") described in Appendix
"A" to this ROFO and Repurchase Agreement (the "Agreement").
B. The City has entered into an agreement of purchase and sale dated as of ______ (the
"Sale Agreement") with SBB Industrial (Seaton) Limited Partnership (the "Initial Transferee")
in order to immediately following the completion of the transactions contemplated pursuant to the
HMQ Purchase Agreement (the "HMQ Closing") to sell the fee simple interest in the Property to
the Initial Transferee.
C. On the HMQ Closing, the Province and the City entered into a participation agreement (the "HMQ
Participation Agreement") as was required pursuant to the HMQ Purchase Agreement.
D. On the completion of the transactions contemplated pursuant to the Sale Agreement the Initial
Transferee: (a) assumed the obligations of the City in the HMQ Participation Agreement and agreed
to be bound by the terms of thereof in respect of the Property, as was required pursuant to the HMQ
Participation Agreement; and (b) entered into this Agreement with the City as was required
pursuant to the Sale Agreement.
NOW THEREFORE in consideration of the mutual covenants hereinafter set forth, the transfer of the
Property from the City to the Transferee and other good and valuable consideration, the parties hereto agree
as follows:
1. For the purposes of this Agreement:
"Affiliate" means a wholly owned subsidiary of the Transferee.
"Base Amount" means, subject to paragraph 10, [NTD-enter purchase price] in respect of the
Property, as such purchase price was adjusted pursuant to the Sale Agreement and, if applicable, is
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recalculated based on a pro-rata basis in accordance with paragraph 2 below in respect of any
portion oflhe Property.
"Business Day" means any day on which the Government of Ontario normally conducts business.
"Closing Date" means the date upon which the Property is transferred by the City to the Initial
Transferee pursuant to the Sale Agreement, being <<Enter Closing Date>>.
"Development Agreements" has the meaning ascribed thereto in the Salt: Agreement.
"Eligible Expenses" means, subject to paragraph I 0, in respect of a Sale Interest, the aggregate of
the following:
(a) I 00% of the cumulative total of all hard and soft costs incurred in respect of capital
improvements (as capital is detennined in accordance with generally accepted accounting
principles) made by or on behalf of the Transferee to the Sale Interest from and after the
Closing Date;
(b) reasonable legal and accounting fees paid by the Transferee in disposing of the Sale
Interest; and
(c) any amounts paid by the Transferee pursuant to the terms of the Development Agreements
in respect of the Sale Interest, less any amounts which the Transferee may have received
by way of development credits or otherwise in respect of the Sale Interest, during the period
of the Transferee's ownership of the Sale Interest.
"Sale Price" means, in respect of a Sale Interest that is acquired by a Third Party purchaser from a
Transferee, the value in lawful money of Canada of all consideration and benefit paid or agreed to
be paid for the Property or portion thereof, including all buildings and improvements, by such Third
Party purchaser dealing with the Transferee, including the value of all chattels situate thereon which
are then owned by the Transferee and which are intended to pass on such sale transaction and the
value of any encumbrances or mortgages assumed by such purchaser or taken back as part of the
consideration for s uch sale transaction.
"Substantial Completion" means substantial performance of the New Building in accordance with
the Construction Act (Ontario), as amended.
''Term" means the period commencing on the date hereof and expiring on the earlier of (i) the date
on which the New Building has reached Substantial Completion; and (ii) the date which is five (5)
years following the date hereof.
"Third Party" means, in respect of a Person, another Person that is not at arm's length to such
Person or who is not an Affiliate of such Person.
"Transferee" means the Initial Transferee and any successor in title to the Property during the
Term.
2. In the event of a sale or proposed sale of all or any portion of the Property (the "Sale Interest") by
the Transferee to a Third Party at any time during the Term, at the option of the City, subject to
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paragraph 8(a) the City shall have the right to repurchase the Sale Interest at a purchase price equal
to:
(a) if the Permits have not been obtained by the Transferee , an amount equal to the purchase
price determined pursuant to paragraph 4, mutatis mutandis; or
(b) if the Permits have been obtained by the Transferee, but the New Building has not reached
Substantial Completion: an amount equal to the Base Amount plus the Eligible Expenses
in respect thereof,
(as such purchase price is calculated in accordance with this paragraph 2, the "P u rchase Price")
and otherwise on the terms and conditions set out in this paragraph 2. In determining the Base
Amount for a Sale Interest that is a portion of the Property , the Base Amount shall be adjusted and
calculated on a pro-rata basis based on the acreage of such portion being transferred, as shown by
evidence (e.g. a reference plan) provided by the Transferee to the City at no cost to the City , to the
reasonable satisfaction of the City. With respect to any capital improvement costs or other costs or
expenses involved in the calculation of the Purchase Price or price at which the City is to repurchase
the Sale Interest in accordance with this Agreement, the Transferee shall provide all documents,
records and invoices in sufficient detail , at no cost to the City, to allow analysis and approval of
such calculation(s) by the City, acting reasonably.
3. If the Transferee intends to sell the Sale Interest to a Third Party , or otherwise market for sale the
Sale Interest to Third Parties, the following shall apply:
(a) The Transferee shall give a notice (the "Sale Notice") to the City , which Sale Notice shall
state such intentions, and shall contain an offer to sell to the City the Sale Interest at the
Purchase Price and otherwise on the terms and conditions set out in this paragraph 2.
(b) Subject to paragraph 8(a), the City shall have the right, exercisable by notice in writing
given to the Transferee within 90 days following receipt of a Sale Notice (the "Offer
Period") to elect to:
(i) purchase the Sale Interest (the "Acceptance Notice") at the Purchase Price and
otherwise on the terms and conditions set out in this paragraph 2; or
(ii) not to purchase the Sale Interest (the "Rejection Notice").
( c) If within the Offer Period, the City delivers an Acceptance Notice to the Transferee, subject
to paragraph 8(a), there shall be created at such time, automatically and without any further
action or automatically and without any further action or documentation, an agreement of
purchase and sale between the City and the Transferee pursuant to which the Transferee
agrees to sell to the City, and the City agrees to purchase from the Transferee, the Sale
Interest at the Purchase Price and on the terms and conditions set out in the Sale Agreement,
mutatis mutandis, including those terms and conditions in respect of Permitted
Encumbrances (as defined therein) and Development Agreements, provided that: (i)
Closing will occur on the date which is 60 days after the City delivers the Acceptance
Notice; (ii) if the Sale Interest is subject to one or more tenancies with Third Party(ies),
such tenancies shall be assigned to the City, and the Purchase Price shall be subject to
customary adjustment in respect thereof, all of which tenancy provisions shall be on terms
and conditions customary for tenanted industrial property in the Greater Toronto Area; and
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(iii) such agreement of purchase and sale shall not be subject to the City obtaining any
required approvals, it being agreed that any such approvals shall be sought and obtained
prior to the City delivering an Acceptance Notice; further provided that if such agreement
of purchase and sale terminates due to the City's default thereunder, the City shall be
deemed to have delivered a Rejection Notice upon the occurrence of such termination.
(d) If no notice is delivered by the City pursuant to paragraph 3(b), or if paragraph 8(a) applies,
the City shall be deemed to have delivered a Rejection Notice.
(e) If the City delivers, or is deemed to have delivered, a Rejection Notice, the Transferee may
sell the Sale Interest to any Third Party at such purchase price and on such terms and
conditions it agrees to, in its sole and absolute discretion, with such Third Party; provided
that if a sale of the Sale Interest does not occur within 180 days following date of delivery
or deemed delivery of a Rejection Notice, the Transferee must again comply with this
paragraph 2 in respect of any future proposed sale of all or any part of the Property.
4. In the event that the Transferee has failed to:
(a) obtain and deliver copies to the City, of all development approvals, building permits and
other third permits or consents required by Applicable Law from the City or other
appropriate Authority to commence construction on the Property a building of not less than
100,000 square feet (the "New Building", and such approvals, permits and consents, the
"Permits"); and
(b) commence construction of the New Building,
on or before the fifth anniversary of the date of this Agreement provided that any such delays are
not as a result of the City or other appropriate Authority unreasonably refusing to issue the
necessary Permits or taking unreasonable delays in issuing such Permits, following receipt of a
complete application by the Transferee for the same, then at any time, and from time to time, after
the fifth anniversary of the date of this Agreement, subject to paragraph 8(b ), the City shall have
the right, but not the obligation, upon written notice during the Repurchase Notice Period to the
Transferee of its intention to repurchase the Property (the "Repurchase Notice"), to repurchase the
Property, for a purchase price equal to:
(i) the Base Amount; plus
(ii) any amounts paid by the Transferee pursuant to the terms of the Development
Agreements in respect of the Sale Interest, less any amounts which the Transferee
may have received by way of development credits or otherwise, during the period
of the Transferee's ownership of the Property;
5. If the City delivers the Repurchase Notice to the Transferee during the Repurchase Notice Period,
subject to paragraph 8(b), there shall be created at such time, automatically and without any further
action or documentation, an agreement of purchase and sale between the City and the Transferee
pursuant to which the Transferee agrees to sell to the City, and the City agrees to purchase from
the Transferee, subject to all required approvals to be obtained within 90 days, the Property at the
price calculated in accordance with paragraph 4 and substantially consistent with the terms and
conditions set out in the Sale Agreement, mutatis mutandis, including those terms and conditions
in respect of Permitted Encumbrances (as defined therein) and Development Agreements, but
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otherwise to be a in a form agreed to by the City and Transferee, each acting reasonably , provided
that: (a) Closing will occur on the date which is 60 days after the City delivers the written notice
that it has received all required approvals; and (b) the Transferee shall return the Property to the
City in its original condition it was in immediately prior to the transfer of the Property from the
City to Initial Transferee and, if applicable , the Transferee shall have the obligation to restore the
Property to such condition at no cost to the City. Any delivery of the Repurchase Notice following
the expiry of the Repurchase Notice Period shall be null and void, and no agreement of purchase
and sale shall be created upon such delivery. In this Agreement, "Repurchase Notice Period"
means the period commencing on the day following the fifth anniversary of the date of this
Agreement and , subject to paragraph 8(b), ending on the 90 th day following such day.
6. The Transferee acknowledges that the City may be required to obtain certain approvals to exercise
any of the options under this Agreement.
7. The City and the Transferee agree and acknowledge that the provisions of paragraph 2 shall not be
applicable to (and none of the following shall constitute a sale or transfer for the purposes hereof),
and the Transferee shall be entitled to do each of the following without triggering the provisions of
paragraph 2:
(a) any transfer or sale of a Sale Interest by the Transferee to an Affiliate of the Transferee
provided that the Transferee provides the City with 15 days prior written notice of such
transfer and provided that each such transferee assumes the obligations of the Transferee
in compliance with paragraph IO below; in the event of such a transfer or sale the Eligible
Expenses of such Transferee in regard to such Sale Interest shall be deemed to be the sum
of the costs of such Affiliate and of its affiliated Transferee from which it acquired such
Sale Interest; or
(b) any bona fide mortgage or encumbrance of the Property or any part thereof in favour of a
Third Party to secure the repayment of borrowings by the Transferor to the extent such
borrowings are in respect of the acquisition and/or improvement of the Property or any part
thereof and for no other purpose or property; or
( c) a sale by a bona fide Third Party mortgagee of the Property or any part thereof referred to
in paragraph (b) above, provided however that such Mortgagee and the City, each acting
reasonably, enter into an acknowledgement and assumption of this Participation
Agreement, which acknowledgement and assumption shall not provide for a right of
repurchase for the Province upon such sale, but shall require that any transferee of the
Property or part thereof from such mortgagee enter into an assumption agreement in
compliance with paragraph 9 below.
8. The City acknowledges and agrees that the rights of the City under this Agreement are subordinate
in all respect to the rights of the Province pursuant to the HMQ Participation Agreement.
Accordingly:
(a) if the Province validly delivers an "Acceptance Notice" pursuant to (and as defined in) the
HMQ Participation Agreement in respect of a Sale Interest, then upon such delivery: (i)
the Offer Period hereunder shall immediately expire; (ii) the City shall be deemed to have
delivered a Rejection Notice hereunder in respect of such Sale Interest; and (iii) if
applicable, any agreement and purchase and sale in respect of such Sale Interest created
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hereunder by the prior delivery of an Acceptance Notice by the City shall be null and void
and of no further force or effect; and
(b) if the Province validly delivers a "Repurchase Notice" pursuant to (and as defined in) the
HMQ Particlpation Agreem~nt, then upon such delivery: (i) the Repurchase Notice Period
hereunder shall immediately expire; and (ii) if applicable, any agreement and purchase and
sale in respect of the Property created hereunder by the prior delivery of a Repurchase
Notice by the City shall be null and void and of no further force or effect.
For certainty, and notwithstanding any provision of this Agreement, the Sale Agreement, the HMQ
Participation Agreement and/or the HMQ Purchase Agreement, the City does not have any right to
participation in any "Profit" (as defined in the HMQ Participation Agreement) or any other amounts
payable by a transferee of a Sale Interest, it being agreed that the right of participation in such Profit
is as between the City and the Province, the sole right of the Province pursuant to the HMQ
Participation Agreement.
9. On the Closing Date the Transferee will register in the appropriate land registry office a Notice of
this Agreement on title to the Property immediately following the transfer to the Transferee and
prior to any mmigage or other instrument ( other than Pennitted Encumbrances pursuant to, and as
defined in, the Sale Agreement, including notice of the HMQ Participation Agreement).
10. The Transferee acknowledges that the provisions of this Agreement run with title to the Property,
and the Transferee covenants not to sell, transfer or otherwise alienate the Property or any part
thereof to any affiliated entity or any third party unless such transferee agrees in writing to assume
the obligations of the Transferee herein and be bound by the terms of this Agreement in respect of
the Property or such part thereof, as the case may be, in a form satisfactory to the City, acting
reasonably.
I I . In the case of sale of a Sale Interest by a Transferee to a Third Party during the Term: (A) the
Eligible Expenses in respect of such Sale Interest shall be the relevant costs incurred by such
Transferee dwing its period of ownership of such Sale Interest that are captured by the definition
of "Eligible Expenses"; and (B) the Base Amount in respect of such Sale Interest shall be the Sale
Price paid by such Transferee in respect thereof, calculated based on a pro-rata basis in accordance
with paragraph 2 above in respect of any portion of the Property if applicable.
12. Any notice or other communication required or permitted to be given hereunder ("Notice") must
be in writing and must be given by email or by delivery. Any other means of notice will not be
effective for the purposes of this Agreement. If a Notice is given in accordance with the foregoing
sentence after 5:00 p.m. (Toronto time) on a Business Day, it shall be deemed to have been given
on the next Business Day thereafter and if it is given in accordance with the foregoing sentence on
or prior to 5:00 p.m. (Toronto time) on a Business Day, it shall be deemed to have been received
on such day. Notice of change of address will also be governed by this Section. Notices and other
communications will be addressed as follows:
ifto the Transferee at:
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Vaughan, ON
L4K SZS
38997-2007 3490650S.~
- 8 -
DATED the <<Day>>, day of <<Month>>, <<Year>>.
DATCD the <<Day>>, day of <<Month>>, <<Year>>.
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SBB INDUSTRIAL (SEATON) LIMITED
PARTNERSHIP,
by its general partner, SBB INDUSTRIAL
(SEATON) GP INC .
Per:
Name:
Title:
8y :
Name :
Title :
I/We have authority to bind the Partnership.
THE CORPORATION OF THE CITY OF
PlCKER JNG
Per:
Name :
Titl e:
By:
Name:
Title:
- 9 -
APPENDIX "A"
J
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SCHEDULEH
P URCHASER'S ENVIRONMENT AL I NDEMNITY AND COVENANT NOT TO SU E
TO: The Corporation of the City of Pickering (the "Vendor")
AND TO: <<Purchaser's Solicitor Name and/or Law Firm Name>>, its solicitors
RE: <<Purchaser(s) Name>> (the "Purchaser") purchase from the Vendor of the property legally
described as <<Legal Description>>, being <<the whole OR part>> of PIN <<Enter PIN>> (LT) (the
"Property") pursuant to an Agreement of Purchase and Sale between the Purchaser, as purchaser, and the
Vendor, as venc.lur, accepted <<Date Offer Accepted>>, as may be amended from time to time (the
"Purchase Agreement")
In consideration the closing of the Transaction and other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged:
1. The Purchaser agrees to accept, assume and take title the Property and any improvement
thereon in an "As Is Where Is" condition in accordance with Section 5 of the Purchase
Agreement.
2. The Purchaser acknowledges and hereby agrees to indemnify and save harmless the Vendor
and its employees, directors, officers, appointees and agents from, any and all costs (including
legal, consultant and witness costs and fees), claims, demands, actions, prosecutions,
administrative hearings, fines, losses, damages, penalties,judgments, awards (including awards
of costs) and liabilities (including sums paid in settlement of claims), that may arise as a result
of the condition of the Property, the presence of Hazardous Substances or Contaminants in, on
or under the Lands, the Buildings or any structure or paved surface, or in any environmental
medium (including, but not limited to, the soil, groundwater, or soil vapour on or under, or
emanating from the Property), any order issued by any Authority in connection with the
condition of the Property, or any loss, damage, or injury caused either directly or indirectly as
a result of the condition of the Property including, without limitation, non-compliance with
E nvironmental Law or the existence of any Hazardous Substance or Contaminant. Without
limiting the generality of the foregoing, this indemnification shall spec ifically cover costs
incurred, from and after the Closing Date, in connection with any claim for personal injury
and/or death, property damage, investigation of site conditions and/or any clean-up, remedial,
removal, monitoring or restoration work required by any federal, provincial, or local
government agency or political subdivision because of the presence of Hazardous Substances,
in, on or under the Lands, the Buildings or any environmental medium, structure or paved
surface or emanating therefrom.
3. The Purchaser covenants and agrees that, effective as of the Closing Date, the Purchaser forever
releases and covenants not to sue the Vendor and its employees, directors, officers, appointees
and agents with respect to anything ari sing out of the environme ntal or any other condition of
the Property or the presence of Hazardous Substances or Contaminants in, on, under, or
emanating from or onto the Property, regardless of whether such environmental conditions or
Tor#; 10245196.9
3 8997-2007 34 906505.4
-2 -
the presence of Hazardous Substances or Contaminants is known or unknown by the Purchaser
and regardless of whether such condition is set forth in the Property Documents, the
Purchaser's Reports or any other report, document or information discovered during the course
of the Purchaser's due diligence or otherwise. The foregoing release and covenant not to sue
shall apply to all claims at law or in equity, including, but not limited to, claims or causes of
action for personal injury or death, property damage, statutory claims under Environmental
Laws and claims for contribution.
4. This Indemnity shall not merge but shall survive the Date of Closing and shall be continuing
obligation of the Purchaser.
5. Unless otherwise defined herein, all capitalized terms used herein have the meaning ascribed
to them in the Purchase Agreement.
6. The provisions of this Purchaser's Environmental Indemnity and Covenant Not to Sue shall
enure to the benefit of the Vendor and its successors and assigns and shall be binding upon the
Purchaser and its successors and permitted assigns.
DATED as of the ____ day of <<Month>>, <<Year>>.
Tor#: 10245 196 .9
38997 -20 07 34906505.4
<<PURCHASER(S) NAME>>
Per:
Per:
Name: <<Individual Signing Documents for
Corporation>>
Title: <<Title>>
Name: <<Individual Signing Documents for
Corporation, ifthere is a second person>>
Title: <<Title>>
I/We have the authority to bind the Corporation.
SCHEDULE I
ST A TEMENT OF DEVELOPMENT AGREEMENT PAY M.ENTS
RE: The Corporation of the City of Pickering (the "Purchaser") s/t SBB Industrial (Seaton)
Limited Partnership
[INSERT LEGAL DESCRIPTION)
Closing Date:
Development Agreement Payments to Vendor under Section 16.03 and 16.07
DIC Credit Recovery Payment
Servicing Costs (Veridian)
Seaton CSA
$
$
$
Development Agreement Payments to Applicable Trustee under Section 16.06
Private Landowner Equivalency Payment $
Se~onCSA $
Seaton-Durham CSA $
Development Agreement Security under Section 16.01
Phase I RFEA
Seaton CSA
Seaton-Durham CSA
TOTAL AMOUNT
All without duplication.
E.&O.E.
Tor#: 10245196 .9
38997-2007 34906505.4
$ Drawdown LC w/ Region of Durham
$ Security w/ Region of Durham
$
$
$
SCHEDULE A-2
SKETCH OF LANDS
Attachment #3 to Report LEG 11-22
...,-• 0n1.., ... o Seaton Lands -Bundle 6 Transaction 2